Citation Nr: 1319658 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 06-22 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected residuals of gunshot wound to the left arm (non-dominant) with fracture of left humerus, Muscle Group V. 2. Entitlement to a disability rating in excess of 10 percent for service-connected left arm scars, residual gunshot wounds, and surgical scars prior to October 23, 2008. 3. Entitlement to a disability rating in excess of 20 percent for service-connected left arm scars, to include residual gunshot wounds and surgical scars, since October 23, 2008. 4. Entitlement to a disability rating in excess of 20 percent for service-connected radial nerve injury of the left wrist due to gunshot wound residual. 5. Entitlement to a compensable disability rating for service-connected limitation of flexion of the left elbow/forearm due to gunshot wound residuals. 6. Entitlement to an effective date prior to November 28, 2012, for the grant of service connection for radial nerve injury of the left wrist due to gunshot wound residual. 7. Entitlement to an effective date prior to November 28, 2012, for the grant of service connection for limitation of flexion of the left elbow/forearm due to gunshot wound residuals. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefits currently sought on appeal. The Veteran's appeal was remanded by the Board in November 2011 in order to schedule the Veteran for an appropriate VA or fee-basis examination to determine the nature and etiology of the gunshot residuals to his left arm. Such opinions were obtained in April and November 2012. Accordingly, with respect to the issues decided herein, the Board finds that there has been substantial compliance with the directives of the November 2011 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Since the Board's most recent remand, in a rating decision issued in January 2013, the Appeals Management Center (AMC) granted service connection for additional residuals of the Veteran's gunshot wound to the left arm, to include left arm scars (effective March 11, 2003), a radial nerve injury of the left wrist (effective November 28, 2012), and limitation of flexion of the left elbow/forearm (effective November 28, 2012). As the scars, nerve injury, and limitation of flexion of the left elbow are now considered residuals of the gunshot wound to the left arm, the Board has added to the title page of this decision the issues of entitlement to higher ratings for these disabilities for the sake of clarity. The Board notes further that an April 2012 VA muscle injury examination report and corresponding Muscle Injury Disability Benefits Questionnaire raises the issue of entitlement to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which, in that case was posttraumatic stress disorder (PTSD). Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, under Rice and this line of precedent cases, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated on the service-connected disabilities for which the Veteran is requesting higher ratings in this appeal. Also, as will be discussed in the remand portion of this decision, the Veteran has recently taken issue with the effective dates assigned from the date of a November 2012 VA examination. Thus, in addition to the inferred TDIU claim, the issues of entitlement to an earlier effective dates for the grant of service connection for radial nerve injury of the left wrist, and limitation of flexion of the left elbow/forearm are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. The Veteran's service-connected residuals of gunshot wound to the left arm with fracture of left humerus are productive of no more than moderately severe impairment of Muscle Group V. Severe impairment of Muscle Group V is not shown. 3. Prior to October 23, 2008, the Veteran's service-connected left arm scars were painful on examination. 4. Since October 23, 2008, there is evidence of five or more painful left arm scars, including the suture marks on the entrance and exit wounds. 5. The Veteran's service-connected radial nerve injury of the left wrist is manifested by no more than moderate deficits, as shown by weakness in left wrist extension and grip, as well as a positive Tinel sign (paraesthesia) over the mid humerus fracture site. 6. The Veteran's left elbow/forearm is productive of flexion limited to no less than 125 degrees with no evidence of painful motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected residuals of gunshot wound to the left arm with fracture of left humerus, muscle group V, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.73, Diagnostic Code 5305 (2012). 2. The criteria for a rating in excess of 10 percent for service-connected left arm residual gunshot wounds and surgical scars, have not been met prior to October 23, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code 7804 (2008). 3. The criteria for a 30 percent rating, but no higher, for service-connected left arm residual gunshot wounds and surgical scars have been met since October 23, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.118, Diagnostic Codes 7800, 7804 (2012). 4. The criteria for a rating in excess of 20 percent for service-connected radial nerve injury of the left wrist have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.26, 4.124a, Diagnostic Code 8514 (2012). 5. The criteria for a compensable rating for the service-connected limitation of flexion of the left elbow/forearm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5206 to 5213 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an 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). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Furthermore, as specifically concerning increased-rating claims, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) overturned the lower Court's (CAVC's) ruling in concluding that generic or general notice is sufficient and need not be tailored to each specific Veteran's individual circumstances, including in terms of specifying alternative diagnostic codes and the submission of "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Here, in a pre-adjudicatory letter dated in March 2003, the Veteran was informed of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Thereafter, additional VCAA notice was provided to the Veteran in July 2008, December 2011, and July 2012. Subsequent to the issuance of all VCAA notice, the Veteran's claim was readjudicated by way of a January 2013 SSOC. No further development is required regarding the duty to notify. In any event, the Veteran has not alleged that any content error prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the content of VCAA notice. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA medical records, and the statements of the Veteran in support of his claim. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain with respect to the issues being adjudicated herein. VA examinations were obtained in April and November 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate with respect to the issues decided herein. The examination reports include the Veteran's statements regarding his symptoms. As the Veteran is competent to report his symptoms another examination report would not assist the Board in its adjudication. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claims. Essentially, all available evidence that could substantiate the claim has been obtained. II. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). When evaluating a loss of range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. , at 206. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Indeed, in Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Nonetheless, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). A. Muscle Group V - Residuals of Gunshot Wound to Left Arm When a Veteran files a claim for an increased rating of an already established service-connected disability, as this Veteran did in this particular instance with regards to the claim for a higher rating for the residuals of the GSW to the left arm, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is the primary concern and that past medical reports do not have precedence over current medical findings. Nevertheless, in assessing the present level of disability, the relevant temporal focus is from one year prior to the filing of the claim for an increased rating, and from that point going forward there must be consideration of whether there have been occasions when the disability has been more severe than at others. If there have been, then just as in the case of an initial rating (see Fenderson, 12 Vet. App. at 125-26), VA must "stage" the rating to compensate the Veteran for this variance. Hart v. Mansfield, 21 Vet. App. 505 (2007). See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The evidence of record reflects that the Veteran is right-handed and, thus, his left extremity is considered his non-dominant, or minor, extremity. The Veteran seeks entitlement to a disability rating in excess of 20 percent for service-connected residuals of gunshot wound to the left arm (non-dominant) with fracture of left humerus, muscle group V. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73 (2012). For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. See 38 C.F.R. § 4.55(b) (2012). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. See 38 C.F.R. § 4.56(d) (2012). Furthermore, 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and no single factor is per se controlling. See Tropf v. Nicholson, 20 Vet. App. 317 (2006). The Board observes that the words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Residuals of gunshot and shell fragment wounds are evaluated on the basis of the following factors: the velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and, current objective clinical findings. All such evidence serves to define slight, moderate, moderately severe, and severe muscle injuries due to gunshot wounds or other trauma. See 38 C.F.R. § 4.56 (2012). Diagnostic Codes 5301 to 5309 provide the criteria for rating muscle injuries affecting the shoulder girdle and arm. In this case, the RO rated the Veteran's service-connected left arm injury as 20 percent disabling under Diagnostic Code 5305, pertaining to injuries to Muscle Group V. See 38 C.F.R. § 4.73 (2012). Muscle Group V includes the flexor muscles of the elbow that function to provide elbow supination and flexion of the elbow. These muscles consist of the biceps, brachialis, and brachioradialis. See 38 C.F.R. § 4.73, Diagnostic Code 5305 (2012). Under Diagnostic Code 5305, a noncompensable rating is warranted for slight impairment of the non-dominant arm. If the impairment is moderate in degree, a 10 percent rating is warranted. If the impairment is moderately severe, a 20 percent rating is warranted. Finally, if the impairment is severe, a 30 percent rating is warranted. See 38 C.F.R. § 4.73, Diagnostic Code 5305 (2012). A slight disability of muscles involves a simple muscle wound without debridement or infection. Service department records reflect a superficial wound with brief treatment and return to duty and healing with good functional results. There are no cardinal signs or symptoms of muscle disability. The objective findings include a minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in the muscle tissue. See 38 C.F.R. § 4.56(d)(1) (2012). A moderate disability of the muscles involves a through-and-through or deep penetrating wound of a relatively short track by a single bullet or small shell or a shrapnel fragment, and the absence of explosive effect of high-velocity missile and of residuals of debridement or of prolonged infection. There must be evidence of in-service treatment of the wound. There must be a record in the file of consistent complaint of one or more of the cardinal symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective findings include entrance and, if present, exit scars which are linear or relatively small, and so situated as to indicate a relatively short track of the missile through the muscle tissue; signs of 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. See 38 C.F.R. § 4.56(d)(2) (2012). A moderately severe disability of muscles involves a through-and-through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, and intermuscular cicatrization. There must be evidence of hospitalization for a prolonged period in service for treatment of the wound. The record must contain consistent complaints of cardinal symptoms of muscle wounds. There must be evidence of unemployability because of inability to keep up with work requirements, if present. The objective findings are entrance and, if present, exit scars which are so situated as to indicate a track of a missile through one or more muscle groups. There are indications on palpation of loss of deep fascia, or loss of muscle substance or loss of normal firm resistance of muscles compared with the sound side. The tests of strength and endurance of the muscle groups involved (compared with the sound side) give positive evidence of impairment. See 38 C.F.R. § 4.56(d)(3) (2012). Finally, a severe disability of muscles involves a through-and-through or deep penetrating wound due to a high-velocity missile, or a 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 cicatrization. The history and complaints are similar to the criteria set forth for a moderately severe level, in an aggravated form. The objective findings include extensive ragged, depressed and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of the missile. The following, if present, are also signs of severe muscle damage: (a) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesions 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. See 38 C.F.R. § 4.56(d)(4) (2012). 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. See 38 C.F.R. § 4.56(c) (2012). Additionally, VA regulations define normal range of motion of the shoulder, which is defined as 180 degrees of flexion, 180 degrees of abduction, and 90 degrees of internal and external rotation. Normal range of motion of the elbow is defined as from zero degrees of extension to 145 degrees of flexion. Normal range of motion of the forearm is defined as 80 degrees of pronation and 85 degrees of supination. See 38 C.F.R. § 4.71, Plate I (2012). The Veteran was afforded a VA compensation examination in September 2003, at which time he was diagnosed as having through-and-through post-gunshot wound in the left upper arm involving Muscle Group V. Subjectively, the Veteran described developing constant pain in the left upper arm at the site of his humeral fracture and gunshot wound in 2003. Physical examination revealed a bullet entrance wound scar along the medial aspect of the left upper arm with slight muscle deformity. Forceful extension of the left arm provoked pain at the site of the wound, although forceful extension did not provoke or aggravate pain. The Veteran exhibited normal strength of flexion and extension muscles in the left upper arm, and there was normal range of motion of the elbow. In April 2006, VA examiner prepared an examination report based on review of the claims file and without a physical examination of the Veteran. The examiner reiterated that the original VA examiner described a wound that had penetrated bicep muscle and reported that there was only slight deformity of the bicep and no tenderness except with deep pressure at the wound site. There was no damage to any other muscle or to underlying or adjacent tissue from the original wound, and no damage as a result of subsequent treatment or surgical procedure. The current examiner noted that the original examiner indicated that forceful flexion of the left arm did not provoke or aggravate muscle pain, and that the Veteran exhibited normal strength of flexion and extension in the left upper arm. There was also normal range of motion of the elbow joint. The Veteran was afforded a VA shoulder and arm conditions examination in January 2012, at which time he subjectively complained of pain with any motion of the left shoulder as well as constant soreness in the brachialis. He was able to do all tasks, but did so sluggishly with all motions, especially abduction. The Veteran was afforded a VA muscle injury examination in April 2012, at which time the examiner noted a mild degree of subcutaneous loss on the left arm in the muscle injury area. Subjectively, the Veteran described dull pain in the left arm when he elevated his left arm above shoulder level. The Veteran further indicated that motion or lifting objects of about 15 to 20 pounds would cause him to have left arm pain. His left hand grip was graded as 4/5. The corresponding Muscle Injuries Disabilities Benefit Questionnaire indicated that the Veteran had a penetrating through-and-through gunshot wound which affected Muscle Group V, the flexor muscles of the elbow (biceps, brachialis, brachioradialis). This muscle injury resulted in some impairment of muscle tonus, some loss of muscle substance, visible or measureable muscle atrophy, and severe impairment of function with respect to endurance or coordinated movements. Additionally, the Veteran exhibited loss of power, weakness, lowered threshold of fatigue, and fatigue/pain in the upper left extremity. Elbow flexion and extension were both 4/5 (less than normal strength). It was indicated that the Veteran had difficulty lifting objects exceeding 5 pounds with this left arm. As the examiner considered Muscle Group V, particularly the left bicep, to be the only affected muscles, the Veteran's muscle injury will be analyzed under Diagnostic Code 5305. The Veteran's current 20 percent rating contemplates a moderately severe injury of Muscle Group V. The medical evidence however does not support a finding that his through-and-through left arm injury is of a nature that is more than moderately severe, or in other words, severe. Indeed, he experiences some of the cardinal signs and symptoms of muscle disability, such as loss of power, weakness, lowered threshold of fatigue, and fatigue pain. Nonetheless, there is no X-ray evidence of minute, multiple-scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile, no adhesions of scar to one of the long bones with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle, diminished muscle excitability to pulsed electrical current in electrodiagnostic tests, adaptive contraction of an opposing group of muscles, atrophy of muscle groups not in the track of the missile, or induration or atrophy of an entire muscle. Rather, X-rays revealed a solidly-healed fracture of the mid shaft of the humerus, with no evidence of foreign bodies. The medical evidence indicates that the only muscle affected is the left bicep; and, although there is some impairment of muscle tonus, some loss of muscle substance, and visible or measureable muscle atrophy of the left bicep, it is only manifested in the immediate muscle injury area. Moreover, although severe impairment of function was noted, it was only noted in respect to endurance or coordinated movements of the Veteran's left arm, and not to the nature of the disability as a whole. The current manifestations are adequately compensated by the current 20 percent rating. As mentioned, the medical evidence indicates that other muscles or groups of muscles are not affected by the gunshot wound. Although the Board acknowledges that the Veteran's muscle injury is disabling, it does not rise to the level of a severe muscle injury for the reasons stated above. Consequently, a higher and maximum rating of 30 percent is not warranted under Diagnostic Code 5305. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 20 percent for residuals of shrapnel wound of the left arm must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Thus, the claim will be denied. B. Left Arm Residual Scars As mentioned, the AMC awarded the Veteran entitlement to service connection for two left arm scars in the January 2013 rating decision. The RO assigned a 10 percent disability rating effective March 11, 2003, and a 20 percent disability rating effective October 23, 2008, the date that the revised criteria for evaluating scars became effective. This amendment only applies to applications for benefits received by VA on or after October 23, 2008. However, as the amended regulations were considered by the AMC in granting the Veteran a 20 percent rating effective October 23, 2008, the Board will also evaluate the Veteran's current disability under the revised criteria. Thus, the Board will first consider the propriety of the 10 percent rating assigned prior to October 23, 2008, and then consider the propriety of the 20 percent rating assigned as of October 23, 2008. The Veteran was afforded a VA scars examination in April 2003, at which time he was diagnosed as having tender scars over service-connected scars from a gunshot wound. There were left upper arm entry and exit wounds with post-operative repair. Both scars were sensitive to touch, the lateral scar more so than the right medial scar. The lateral linear scar was 11 centimeters by 7 millimeters at its widest part, with cross scars from sutures. The distal 2/3 was very tender to light palpation. It exhibited a pale color and was non-adherent and shiny, while the surrounding skin was fair. The medial linear scar was flat and 8 centimeters by 1 centimeter at its widest part, with cross scars from sutures. There was sensitivity in the mid-section of the scar. It exhibited a pale color and was non-adherent and shiny, while the surrounding skin was fair. The Veteran was afforded a VA examination in September 2003, at which time the examiner described a bullet entrance wound scar along the medial aspect of the left upper arm which was 4 inches (10.16 centimeters) in vertical length. However, there was no tenderness. The exit wound scar on the lateral aspect of the upper arm was 5 inches (12.7 centimeters) in vertical length and also nontender. However, pressure at the wound sites, both median and lateral, elicited some pain. The Veteran was afforded a VA shoulder and arm conditions examination in January 2012, at which time the examiner indicated that his wound scars were unchanged. Specifically, the lateral wound scar measured approximately 4 inches by 2 inches (10.16 centimeters by 5.08 centimeters). It was hypopigmented, shiny, hairless, coarse, and raised in a depressed muscle with pain in the distal inch. The medial wound also measured approximately 4 inches by 2 inches (10.16 centimeters by 5.08 centimeters) and was located in the depressed area around the muscles. It was linear, hypopigmented, flat, coarse, and painless. The Veteran was afforded another VA examination in April 2012, at which time the examiner noted that the scar along the medial aspect of the upper left arm was 7 centimeters by 1 centimeter with 16 suture marks. There was a 0.5 centimeter depression at the upper proximal 3 centimeters of the scar. The rest of the scar had a lighter complexion and was nontender, although it felt numb to palpation. The healed scar along the mid-lateral arm was 11.5 centimeters by 0.5 centimeters with a 1 millimeter depression and 26 suture marks. The scar had a lighter complexion and was numb to palpation, except for the lower or distal 3 centimeters of the scar. However, the corresponding Scars/Disfigurement Disability Benefits Questionnaire indicated that the Veteran's left arm scars were both 4 inches by 2 inches (10.16 centimeters by 5.08 centimeters), with pain upon pressing on the distal lateral scar. The questionnaire additionally reported that the scars did not result in any limitation of function and did not impact the Veteran's ability to work. The Veteran was afforded his most recent scars examination in November 2012. The corresponding Scars/Disfigurement Disability Benefits Questionnaire indicated that he had surgical scars associated with a left arm gunshot wound. The questionnaire indicated that the Veteran had 5 or more painful scars; however, only two scars were described; in a December 2012 addendum, the examiner explained that the additional scars were the numerous suture marks associated with the 2 main scars. There was one linear scar measuring 7 centimeters by 1 centimeter (with a combined total area of 7 centimeters) and one deep, non-linear scar measuring 11.5 centimeters by 0.5 centimeters (with a combined total area of 5.75 centimeters). However, these scars did not impact the Veteran's ability to work or result in limitation of function. There was no loss of covering of skin over the scars or instability. Under the former Diagnostic Code 7801 (in effect prior to October 23, 2008), scars of other than the head, face, or neck, that are superficial, and that do not cause limited motion, are assigned a 10 percent rating if the area or areas exceed 6 square inches (39 sq. cm.). A 20 percent rating is warranted if the area or areas exceed 12 square inches (77 sq. cm.). Note (2) states that a superficial scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Under the version of Diagnostic Code 7803 in effect prior to October 23, 2008, scars that are superficial or unstable, warrant a 10 percent disability rating. Under Diagnostic Code 7804, scars, superficial, painful on examination, warrant a maximum 10 percent disability rating. Scars may also be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. A review of the record does not show that Veteran's left arm entrance and exit scars were in excess of 12 square inches or that such scars limited the function of any part. As such a higher rating under the former Diagnostic Codes 7801 and 7805 is not warranted. A 10 percent rating is the maximum rating offered under the former Diagnostic Codes 7803 and 7804, thus no higher rating is available under such codes. Additionally, the VA examiners have consistently stated that the scars do not limit the function of any part. Under the diagnostic criteria in effect as of October 23, 2008, Diagnostic Codes 7800, 7801, and 7802 pertain to burn scars and are therefore not applicable to the instant case. 38 C.F.R. § 4.118 (2012). Diagnostic Code 7804 provides a higher rating of 30 percent since October 23, 2008 if there is evidence of five or more scars that are unstable or painful. The November 2012 VA examiner checked the box indicating that the Veteran had 5 or more painful scars. When asked to further explain, the examiner indicated that the Veteran has two main scars of the left arm, an entrance wound and an exit wound but he also has suturing marks on those scars which accounted for the scars totaling 5 or more. Those scars were considered painful, but not unstable. As there is evidence of 5 or more scars that are painful, the criteria for a 30 percent rating, but no higher, is warranted, effective October 23, 2008. C. Residual Radial Nerve Injury of the Left Wrist Entitlement to service connection for radial nerve injury of the left, non-dominant, wrist due to gunshot wound residuals was also established in the January 2013 rating decision, and the AMC assigned a 20 percent disability rating for such disability pursuant to Diagnostic Code 8514. The Veteran continued to disagree with the disability ratings assigned to his service-connected disabilities in his March 2013 Informal Hearing Presentation. As such, the Board will proceed to evaluate whether a higher disability rating is warranted with respect to radial nerve injury of the left wrist. Under Diagnostic Code 8514, incomplete paralysis of the radial nerve of the minor extremity warrants a 20 percent rating if the impairment is mild or moderate. A 40 percent rating is warranted for incomplete paralysis of the radial nerve of the minor extremity if it is severe. Complete paralysis warrants a 60 percent rating for radial nerve impairment of the minor extremity. Complete paralysis is manifested by drop of hands and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only at the greatest rarity. The ratings for peripheral nerves, including the radial and common peroneal nerves, are for unilateral involvement; when bilateral, combine with application of the bilateral factor. See 38 C.F.R. § 4.124a. Private X-rays of the left arm conducted in April 2003 revealed an old, healed mid-humeral shaft fracture. The Veteran complained of dull joint pain in the upper arm. The Veteran was afforded a VA shoulder and arm conditions examination in January 2012, at which time the examiner indicated that cranial nerves II to XII were grossly intact, as were cerebellar finger-to-nose, bilaterally. Motor strength was 5/5. Deep tendon reflexes were 2+ in the bilateral upper extremities. He was able to do all tasks, but did so sluggishly with all motions, especially abduction. The Veteran was afforded a VA examination in April 2012, at which time he was noted to have good pulses and sensory response. Neurological examination revealed that he had good hand coordination and 2+ reflexes. The Veteran was afforded his most recent VA examination in November 2012. The corresponding Elbow and Forearm Disability Benefits Questionnaire indicated that the Veteran had weak wrist extension due to partial radial nerve injury of the mid humerus and a positive Tinel sign over the fracture site. In a January 2013 addendum opinion, the examiner explained that the Veteran's gunshot wound injury was to the humerus just above the elbow and resulted in no weakness of the elbow; however, the Veteran exhibited left arm weakness due to the gunshot wound causing partial injury to the radial nerve which led to weakness in wrist extension and grip. Based on the foregoing, the Board finds that the partial radial nerve injury affecting the Veteran's left upper extremity is no more than moderate, in nature. Indeed, the objective evidence of record shows that the Veteran's partial radial nerve injury is manifested by weakness in left wrist extension and grip. The evidence also shows a positive Tinel sign (paraesthesia) over the mid humerus fracture site. These medical findings warrant no more than a 20 percent rating under Diagnostic Code 8514. Indeed, the Board finds that the Veteran's neurologic impairment does not more nearly approximate a severe disability because, as noted, the evidence shows sensation in the left upper extremity is no more than moderately decreased, and does not show a significant functional impairment, as the Veteran is able to achieve symmetrical and accurate finger movements, albeit sluggishly. In addition to the foregoing, the Board notes the preponderance of the evidence shows only slightly decreased (4/5) motor strength in the left hand. For the reasons expressed above, the preponderance of the evidence is against a higher rating for radial nerve injury of the left wrist and the claim will be denied. D. Limitation of Flexion of the Left Elbow/Forearm Entitlement to service connection for limitation of flexion of the left elbow/forearm (non-dominant) due to gunshot wound residuals was also established in the January 2013 rating decision, and the AMC assigned a noncompensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5206. The hyphenated diagnostic code indicates that an unlisted musculoskeletal disorder, under Diagnostic Code 5299, was the service-connected disorder, and limitation of flexion of the forearm, under Diagnostic Code 5206, was a residual condition. Elbow and forearm disabilities manifested by limitation of flexion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2012). For the minor extremity, a 10 percent rating is warranted for limitation of flexion to 100 degrees. A 20 percent rating is warranted for limitation of flexion to 90 or 70 degrees; a 30 percent rating is warranted for limitation of flexion to 55 degrees; and a 40 percent rating is warranted for limitation of flexion to 45 degrees. Id. Normal flexion in the elbow is to 145 degrees. See 38 C.F.R. § 4.71, Plate I (2012). Elbow and forearm disabilities manifested by limitation of extension are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5207 (2012). For the minor extremity, a 10 percent rating is warranted for limitation of extension to 45 or 60 degrees. A 20 percent rating is warranted for limitation of extension to 75 or 90 degrees; a 30 percent rating is warranted for limitation of extension to 100 degrees; and a 40 percent rating is warranted for limitation of extension to 110 degrees. Id. Normal extension in the elbow is to zero degrees. See 38 C.F.R. § 4.71, Plate I (2012). Limitation of major/minor forearm in flexion to 100 degrees and extension to 45 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5208. Elbow and forearm disabilities manifested by limitation of pronation and supination are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5213 (2012). A 10 percent rating is warranted for limitation of supination to 30 degrees or less. For the minor extremity, a 20 percent rating is warranted for limitation of pronation with motion lost beyond the last quarter of the arc, when the hand does not approach full pronation, or when motion is lost beyond the middle of the arc. Higher evaluations are warranted when the hand is fixed in position. Id. Normal pronation in the forearm is to 80 degrees, and normal supination is to 85 degrees. See 38 C.F.R. § 4.71, Plate I (2012). Elbow and forearm disabilities may also be rated under Diagnostic Codes 5205, 5209, 5210, 5211, and 5212 (2012). Under Diagnostic Code 5205, ratings of up to 50 percent are available for ankylosis of the elbow of the minor extremity. Under Diagnostic Code 5209, ratings of up to 50 percent may be assigned for disabilities of the elbow of the minor extremity manifested by flail joint or by joint fracture with marked cubitus varus, or cubitus valgus deformity, or with ununited fracture of the head of the radius. Diagnostic Codes 5210, 5211, and 5212 provide for ratings of up to 40 percent for disability of the minor extremity manifested by nonunion or malunion of the radius and/or ulna. Private X-rays of the left arm conducted in April 2003 revealed an old, healed mid-humeral shaft fracture. The Veteran complained of dull joint pain in the upper arm. The Veteran was afforded his most recent VA examination in November 2012. The corresponding Elbow and Forearm Disability Benefits Questionnaire indicated that the Veteran denied any flare-ups of pain that impacted the function of the elbow and/or forearm. Range of motion testing revealed left elbow flexion limited to 125 degrees, with no evidence of painful motion, and no limitation of left elbow extension. The Veteran was able to perform testing following 3 repetitions, and post-test range of motion evaluations again revealed left elbow flexion to 125 degrees, and no limitation of left elbow extension. However, functional loss/impairment of the elbow and forearm was noted, manifested by less movement than normal and weakened movement. In addition, there was localized pain upon palpation of the left joints of the elbow and forearm. Muscle strength testing revealed normal strength in the left elbow and left forearm. Review of X-rays revealed a solidly-healed fracture of the mid shaft of the humerus with bayonet apposition. The carrying angle was slight valgus. A higher rating is not warranted under Diagnostic Code 5206, limitation of flexion. The most recent VA examination report indicates that flexion of the left elbow was zero degrees to 125 degrees, with no evidence of painful motion. Normal flexion of the elbow is zero degrees to 140 degrees. See 38 C.F.R. § 4.71a, Plate I. Indeed, the medical evidence dated prior to the November 2012 VA examination does not show range of motion of the left elbow to be any less than 125 degrees. Thus, a compensable rating is not warranted under Diagnostic Code 5206 because there is no evidence of a limitation of flexion of the left forearm to 100 degrees or less, even with consideration of pain. There is no evidence of a limitation of extension of the left forearm for the entire appeal period, so a higher rating is not warranted under Diagnostic Code 5207. Similarly, there is no evidence of compensable supination of the left arm. Specifically, there is no evidence of supination limited to 30 degrees or less warrants to warrant a 10 percent rating under Diagnostic Code 5213. The Board has considered the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 205-208 (1995), which relate to functional loss due to pain, weakness or other musculoskeletal pathology. Although functional loss/impairment of the elbow and forearm was noted in the November 2012 VA examination report, it was manifested only by less movement than normal and weakened movement, which is already contemplated by the decreased range of motion findings above. As already discussed, although range of motion is decreased and weakened, there is no evidence of a limitation of flexion of the left forearm to 100 degrees or less, as required for a compensable rating. Also, his disability is not shown to be manifested by flail joint, or by joint fracture with marked cubitus varus, or cubitus valgus deformity, or with ununited fracture of the head of the radius. Nor is his disability shown to be manifested by nonunion or malunion of the radius and/or ulna. In the final analysis, the Board finds no sound evidentiary basis for the assignment of an evaluation in excess of 10 percent under the diagnostic codes that form the basis of the Veteran's current evaluation (Diagnostic Codes 5299-5206), or any others that are potentially applicable. For the reasons expressed above, the preponderance of the evidence is against a higher rating for radial nerve injury of the left wrist and the claim will be denied. The Board acknowledges further that the Veteran exhibited left shoulder complaints as reported on an April 2012 Shoulder and Arm Conditions Disability Benefits Questionnaire. Notably, the Veteran is not service-connected for a disability of the left shoulder itself. Indeed, the same April 2012 Questionnaire indicated that the Veteran's only injured muscle group of the arm was Muscle Group V, the flexor muscles of the elbow, to include the bicep, brachialis, and brachioradialis. At any rate, according to the April 2012 Questionnaire, left shoulder flexion was limited to 160 degrees, with objective evidence of painful motion at 45 degrees, and left shoulder abduction was limited to 145 degrees, with objective evidence of painful motion at 10 degrees. Post-test range of motion exercises revealed left shoulder flexion limited to 150 degrees, and left shoulder abduction limited to 170 degrees. He had additional limitation in range of motion following repetitive use Thus, for sake of argument, even if the Veteran's left shoulder orthopedic manifestations were considered as a part of his gunshot wound residuals, a separate compensable rating would not be warranted. In this regard, there is no evidence of ankylosis of the scapulohumeral articulation, limitation of left arm motion at shoulder level, malunion of the left humerus, or malunion of the left clavicle or scapula. See Diagnostic Codes 5200-5203; 38 C.F.R. §4.71a (2012). E. Final Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran's Muscle group V impairment of the left arm is primarily productive of some cardinal signs of muscle injury such as loss of power and weakness, manifestations that are contemplated in the rating criteria. The orthopedic manifestations of the left elbow/forearm consist of some limitation of motion (albeit not compensable), and such manifestation is also contemplated in the applicable rating criteria. The left arm scars are primarily productive of pain. Additionally, the neurological impairment in the left wrist is productive of some weakness. These manifestations are contemplated in the applicable rating criteria. The Board further observes that, even if the available schedular ratings for the disabilities are inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his gunshot wound residuals. Additionally, there is not shown to be evidence of marked interference with employment due to his gunshot wound residuals alone. Rather, the record reflects that the 66-year-old Veteran has retired from his position as a police officer. In short, there is nothing in the record to indicate that the Veteran's disabilities cause impairment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER A disability rating in excess of 20 percent for service-connected residuals of gunshot wound to the left arm (non-dominant) with fracture of left humerus, Muscle Group V, is denied. A disability rating in excess of 10 percent for service-connected left arm scars, to include residual gunshot wounds and surgical scars, prior to October 23, 2008, is denied. A 30 percent rating, but no higher, for service-connected left arm scars, to include residual gunshot wounds and surgical scars, since October 23, 2008, is granted, subject the laws and regulations governing monetary benefits. A disability rating in excess of 20 percent for service-connected radial nerve injury of the left wrist (non-dominant) due to gunshot wound residual is denied. A compensable disability rating for service-connected limitation of flexion of the left elbow/forearm (non-dominant) due to gunshot wound residuals is denied. REMAND As noted, the issue of a TDIU has been raised by the record. A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, the Board must assess whether there are circumstances, apart from any non-service connected conditions and advancing age, which would justify a TDIU. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." And in this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See, too, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, service connection is currently in effect for posttraumatic stress disorder (PTSD) (50%), residuals of gunshot wound to left arm, Muscle Group V (20%); residual scars of left arm (20%); diabetes mellitus, type II (20%); radial nerve injury of left wrist (20%); and limitation of flexion of the left elbow/forearm (noncompensable), for a combined disability rated of 80 percent since November 28, 2012. The Veteran has sufficient ratings to satisfy the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU. The April 2012 VA muscle examination report and corresponding Muscle Injury Disability Benefits Questionnaire indicates that the Veteran's muscle injury impacts his ability to work and that he is unable to do left arm curls greater than 5 pounds. These reports however do not address whether the Veteran's service-connected muscle injury precludes him from obtaining and/or maintaining substantially gainful employment, nor do they address the aggregate impact that all of his service connected disabilities have on his employability. As such, a VA examination is warranted. Finally, in the March 2013 submission, the Veteran, through his attorney, indicated that he essentially disagreed with the effective dates assigned for the awards of service connection for radial nerve injury of the left wrist, and limitation of flexion of the left elbow/forearm. The AOJ has not had an opportunity to respond to that appeal. Therefore, the issues are remanded so that the RO/AMC may send the Veteran a statement of the case in response to the notice of disagreement. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. After obtaining any outstanding evidence, schedule the Veteran for an appropriate VA examination in connection with his TDIU claim. The claims file must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests should be conducted. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any non service-connected disabilities, it is at least as likely as not that his service-connected disabilities either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. If the examiner opines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. Any opinions should be reconciled with the evidence of record, to include the most recent VA examination reports. 2. Thereafter, readjudicate the newly inferred TDIU claim. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 3. Additionally, furnish the Veteran a statement of the case as to the issues pertaining to earlier effective dates for entitlement to service connection for radial nerve injury of the left wrist, and limitation of flexion of the left elbow/forearm. If, and only if, the Veteran files a timely substantive appeal should the effective date issues be returned to the Board. 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). ______________________________________________ S. B. MAYS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs