Citation Nr: 1323294	
Decision Date: 07/22/13    Archive Date: 08/01/13

DOCKET NO.  00-04 213A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to earlier effective dates for the grants of service connection for injury to Muscle Groups (MG) II, III, and IV, a posterior right shoulder scar, a scar on the medial aspect of the right scapula, neuropathy of the right upper extremity, a fracture of the right sixth rib and a pleural cavity injury as residuals of a gunshot wound (GSW) of the right shoulder.

2.  Entitlement to an initial evaluation in excess of 30 percent for the residuals of a gunshot wound (GSW) of the right shoulder.


REPRESENTATION

Appellant represented by:	Polly Murphy, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran/appellant served on active duty in the United States Army from July 1966 to August 1969, including a year in Vietnam; he was awarded the Combat Infantryman's Badge (CIB) and the Purple Heart Medal.  

This case originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma in September 1999.  That rating decision denied an evaluation in excess of 30 percent for the right shoulder gunshot wound (GSW) residuals.

The Veteran initially testified before a Veterans Law Judge (VLJ) in August 2000.  The transcript of that videoconference hearing has been associated with the claims file.  Thereafter, the case was remanded for additional development in April 2001.  The VLJ who held the August 2000 hearing subsequently left the Board, and therefore, the Veteran was afforded another Board hearing in June 2006.  The transcript of that second videoconference hearing has been associated with the claims file.  

In a decision issued in February 2007, the Board denied increased evaluations for the GSW residuals and assigned an effective date of June 1999 for some of those residuals.  

The Veteran appealed the February 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court).  The Court issued a July 2008 order granting a June 2008 Joint Motion for Remand.  In accordance with the Joint Motion, the Board remanded the case to the RO for additional development in January 2009.  

The Veteran was afforded another Board hearing in September 2009, before another VLJ.  The transcript of that third videoconference hearing has been associated with the claims file.  Thereafter, the Board issued a decision, in April 2010, which denied increased ratings and effective dates earlier than June 1999 for various GSW residuals.  The Veteran appealed this decision to the Court, and the Court issued a September 2011 Order granting a September 2011 Joint Motion for Remand.  The Board subsequently remanded the case for additional development in June 2012.  The case has now been returned to the Board for appellate review.

The Board notes that the September 2011 Joint Motion stated that the Veteran's claim had, in essence, been open since September 1970, and that the January 1971 rating decision had not ever become final.  The initial ratings were said to be inextricably intertwined.  The Veteran has appealed the initial rating assigned for the residuals of the in-service GSW of the right shoulder.  He was, in effect, asking for a higher rating effective from the date service connection was granted.  Thus, the evaluations for the entire time period in question are on appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Therefore, this case involves a review of the Veteran's claim of September 1970, and the issues on appeal are as listed on the title page.

Because two different current VLJs held hearings in this appeal, the following decision will be reviewed and signed by a panel of three VLJs, which includes the VLJs who presided over the June 2006 and September 2009 hearings.  See 38 C.F.R. § 20.707.

The Board also notes that the Court, in Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), held that a veteran is entitled to an opportunity for a hearing before all the VLJs who will ultimately decide his hearing.  As the Veteran has had two such Board hearings, he was sent a letter, in March 2012, asking if he wanted to have another hearing before a VLJ.  In April 2012, the Veteran responded that he did not desire another hearing.  Therefore, the case is ready for appellate review.

In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claims.  Virtual VA does currently contain evidence pertinent to the claims, namely VA treatment records dated between August 1999 and May 2012.  Otherwise, Virtual VA does not contain any other evidence that is not already included in the paper claims files.

In March 2013, after the case had been certified to the Board, the appellant's attorney submitted additional documents concerning his claims, including a March 2013 written statement from a private physician and argument from the attorney.  No written waiver of review of that evidence by the agency of original jurisdiction was submitted.  Referral to the RO of the evidence received directly by the Board is generally required.  See 38 C.F.R. § 20.1304.  However, in this case, the March 2013 private physician statement was duplicative of the one that doctor wrote in December 2001.  The rest of the attorney's submissions constitute argument about evidence that was previously before the RO and addressed in the most recent Supplemental Statement of the Case.  Therefore, no written waiver is required.  See Vogan v. Shinseki, 24 Vet. App. 159, 167 (2010).

The issue of entitlement to a separate compensable evaluation for the residuals of right rib fractures from a 1967 GSW is addressed in the REMAND portion of the decision below and it is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  On August 15, 1969, the Veteran submitted a claim for residuals of the in-service GSW, namely scars.

2.  In October 1969, the Veteran's claim was denied because he failed to report for a physical examination.

3.  On September 24, 1970, the Veteran submitted a claim of entitlement to service connection for residuals of the in-service GSW; he indicated that the residuals included problems with back and shoulder pains dating from June 1967.

4.  On the basis of the submission of new service treatment records, the January 1971 rating decision is not final.

5.  On the basis of an interim submission in September 1970, the October 1969 rating decision is not final.

6.  The date of the claim for service connection for the residuals of the right shoulder GSW is August 15, 1969, and those residuals encompass injury to MGs II, III, IV; scars of the right shoulder, right scapula and right chest wall; neuropathy of the right upper extremity; right rib fractures; and a pleural cavity injury.

7.  The Veteran is right handed.

8.  The GSW residuals included injuries to MGs II, III, and IV; these were moderately severe to severe in nature.

9.  The combined effect of the injuries to MGs II, III and IV was equivalent to unfavorable ankylosis of the scapulohumeral joint.

10.  The GSW residuals included tender scars of the posterior right shoulder and the medial aspect of the right scapula.

11.  The GSW residuals included a well healed scar of the right anterior mid-chest.

12.  The GSW residuals included mild neurological impairment of the right elbow and wrist.

13.  The GSW residuals included a pleural cavity injury that was manifested by some pain or discomfort on exertion and some mildly abnormal pulmonary function.

CONCLUSIONS OF LAW

1.  The criteria for an effective date of August 5, 1969, for the grant of service connection for Muscle Groups (MG) II, III, and IV, an anterior right shoulder scar, a scar on the medial aspect of the right scapula, neuropathy of the right upper extremity, a fracture of the right sixth rib and a pleural cavity injury have been met.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.156(c), 3.400 (2004); 38 C.F.R. §§ 3.1, 3.156(c), 3.303, 3.400 (2012).

2.  The criteria for an initial disability rating of 50 percent for the MG II, III and IV GSW residuals were met from August 5, 1969.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. §§ 4.7, 4.47, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54, 4.55, 4.56, Diagnostic Code 5200 (1969).

3.  The assignment of a rating greater than 50 percent for the major shoulder, with involvement of MGs II-IV, is prohibited as a matter of law.  38 U.S.C.A. § §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.25, 4.55, 4.73, Diagnostic Codes 5200, 5301-5304 (2012).

4.  The criteria for an initial disability rating of 10 percent for the posterior right shoulder scar as a residual of the in-service GSW were met from August 5, 1969.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 7804 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect prior to and from August 30, 2002, and from October 23, 2008).

5.  The criteria for a disability rating in excess of 10 percent for the posterior right shoulder scar as a residual of the in-service GSW were not met at any time during the appeal period.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 7804 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect prior to and from August 30, 2002, and from October 23, 2008).

6.  The criteria for an initial disability rating of 10 percent for the medial aspect of the right scapula scar as a residual of the in-service GSW were met from August 5, 1969.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 7804 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect prior to and from August 30, 2002, and from October 23, 2008).

7.  The criteria for a disability rating in excess of 10 percent for the scar of the medial aspect of the right scapula as a residual of the in-service GSW were not met at any time during the appeal period.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 7804 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect prior to and from August 30, 2002, and from October 23, 2008).

8.  The criteria for a separate compensable rating for a scar of the right anterior mid-chest area as a residual of the in-service GSW have not been met from August 5, 1969 onward.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 7804 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect prior to and from August 30, 2002, and from October 23, 2008).

9.  The criteria for an initial disability rating of 20 percent for the neurological impairment of the right elbow and wrist as a residual of the in-service GSW were met from August 5, 1969.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 8513 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8510-8513, 8610-8613, 8710-8713 (2012).

10.  The criteria for a disability rating in excess of 20 percent for the neurological impairment of the right elbow and wrist as a residual of the in-service GSW were not met at any time during the appeal period.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 8513 (1969); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8510-8513, 8610-8613, 8710-8713 (2012).

11.  The criteria for an initial disability rating of 20 percent for the pleural cavity injury as a residual of the in-service GSW were met from August 5, 1969.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 6818 (as in effect prior to October 7, 1996); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.97, Diagnostic Code 6843 (as in effect from October 7, 1996, and from October 6, 2006).

12.  The criteria for entitlement to a disability rating in excess of 20 percent for service-connected residuals of a GSW with right pneumothorax have not been met.  38 U.S.C.A. § 355 (West 1964); 38 C.F.R. Part 4 Diagnostic Code 6818 (as in effect prior to October 7, 1996); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.97, Diagnostic Code 6843 (as in effect from October 7, 1996, and from October 6, 2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran was shot in the right shoulder while in combat in Vietnam in June 1967.  He is seeking earlier effective dates for the grants of service connection for the various residuals of that right shoulder GSW, as well as increased evaluations for those residuals.

I.  Duty to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2009).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.  

In a claim for increase, the VA notice requirement is generic notice, that is, 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 (2009).

In the present case, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current 38 U.S.C.A. § 5103(a) requirements in 2000.  The Court acknowledged in Pelegrini that where, as here, the 38 U.S.C.A. § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice.  Rather, a veteran has the right to a content complying notice and proper subsequent VA process.  Pelegrini, 18 Vet. App. at 120.

The appellant's earlier-effective-date claims and initial rating claims arise from his disagreement following the initial grant of service connection.  In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006).  See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Moreover, the appellant has been represented by an attorney throughout the duration of the appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error.").  In sum, the Board finds that any deficiency in the notice to the appellant or the timing of the notice is harmless error.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, the appellant's available service medical treatment records, dated between 1966 and 1969, have been associated with the claims file.  VA outpatient medical treatment records have also been associated with the appellant's claims file and his Virtual VA file.  The appellant was afforded VA examinations in November 1970, July 1979, May 2000, January 2002, July 2007, and July 2012.  A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The various VA examinations were conducted by medical professionals, and the associated reports reflect review of the appellant's prior medical records.  The examinations included the reported symptoms for the GSW residuals and addressed the status of the appellant's GSW residuals.

The Board finds that the VA examination reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  In addition, it is not shown that any examination was in any way incorrectly prepared or that the VA examiner failed to address the clinical significance of the appellant's GSW residuals.  Further, the VA examination reports addressed the applicable criteria.  

As a result, the Board finds that additional development by way of additional examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  Therefore, the Board concludes that the appellant was afforded adequate examinations.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

A Court or Board remand confers upon a veteran the right to substantial, but not strict, compliance with that order.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  In this case, the Veteran was afforded VA examinations and the case was readjudicated as directed by the June 2012 Board remand.  Therefore, substantial compliance has been achieved.

Furthermore, the Veteran was informed about the kind of evidence that was required and the kinds of assistance VA would provide, and he was supplied with the text of 38 C.F.R. § 3.159.  He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained.  He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations.

The appellant was provided with notice as to the medical evidence needed for increased evaluations for his GSW residuals and the evidence needed for earlier effective dates, as well as the assistance VA would provide.  Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

All relevant facts with respect to the claims addressed in the decision below have been properly developed.  Under the circumstances of this case, a remand would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

II.  The Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A.  Earlier effective date claims

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a).  

The effective date of an award for service connection will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).

Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  See 38 C.F.R. § 3.1(p); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits).  A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits.  See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).  

The Board notes that revisions were made to 38 C.F.R. §§ 3.156(c) and 3.400(q), effective on October 6, 2006.  38 C.F.R. § 3.156(c) was revised to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records.  The substance of 38 C.F.R. § 3.400(q)(2) is now included in the revised 38 C.F.R. § 3.156(c).  Prior to the revision, 38 C.F.R. § 3.400(q)(2) governed the effective date of benefits awarded when VA reconsidered a claim based on newly discovered service department records.  The prior § 3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2) without substantive change.  See 70 Fed. Reg. 35388 (2005).  As in effect prior to October 6, 2006, 38 C.F.R. § 3.156(c) and 38 C.F.R. § 3.400(q)(2), together establish an exception to the general effective date rule in § 3.400 which provides that the effective date of an award of benefits will be the date of claim or the date entitlement arose, whichever is later.  The exception applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for a benefit and those records lead VA to award a benefit that was not granted in the previous decision.  Under this exception, the effective date of such an award may relate back to the decision of the original claim or date entitlement arose, whichever is later, even though the decision on that claim may be final under § 3.104.  

As noted above, 38 C.F.R. § 3.156(c) was revised to clarify VA's current practice that when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later.  The pertinent revisions include removal of the "new and material" requirement in § 3.156(c).  Because the rule regarding the effective date of an award of benefits based all or in part on newly-discovered service department records is now included in § 3.156(c), the effective date provision was removed from § 3.400(q).  Effective on or after October 6, 2006, 38 C.F.R. § 3.156(c) provides that notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.  38 C.F.R. § 3.156(c)(1).  An award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.  38 C.F.R. § 3.156(c)(3).

The record shows that the Veteran was originally granted service connection for a penetrating GSW of the right anterior shoulder, MG III in a January 1971 rating decision.  The RO assigned an overall disability rating of 30 percent for MG III and MG IV, plus the fracture of the right 6th rib.  The Veteran was then granted a separate disability rating in a June 2003 rating decision for a wound of the right anterior shoulder, MG III, of 20 percent, effective January 29, 2002.  He was also granted service connection for other residuals of the GSW, namely the shoulder and scapula scars, the right upper extremity neuropathy, the right 6th rib fracture and a respiratory disorder.  The Veteran appealed the assigned disability ratings and effective dates.  

Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue.  In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.  38 U.S.C.A. § 5110(g).

The Court has held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  See also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision).  

As previously noted, the appellant submitted his original claim for benefits in August 1969; he identified his GSW residuals as scars.  In October 1969, the appellant's claim was denied because he had failed to report for an examination.  However, the appellant submitted another application for benefits in September 1970, and he stated in that application that his GSW residuals included back and shoulder pains.  In July 2004, service medical records for the Veteran from the 2nd Surgical hospital and the 67th Evacuation Hospital were added to the claims file.  These records pertained to the treatment of the Veteran's GSW and included descriptions of the GSW residuals that provided details not previously available.  

As such, the Board finds that this additional evidence falls into the exception created by 38 C.F.R. § 3.156(c).  The Veteran's new service treatment records require reconsideration of the claim from the time of the original grant of service connection.  The Veteran's claim of September 1970 must therefore be considered still pending.  See 38 C.F.R. § 3.156; Vigil v. Peake, 22 Vet. App. 63 (2008).

Furthermore, the Federal Circuit in Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007) held that "a claim becomes final and subject to a motion to reopen only after the period for appeal has run.  Any interim submissions before finality must be considered by the VA as part of the original claim."  Id., at 1368.  As previously noted, the appellant's original claim was denied in October 1969.  However, in September 1970, within one year of the RO's denial, the appellant submitted another claim for residuals of the GSW and provided additional information about what those residuals were.

In light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that a claimant's intent in filing a claim is paramount to construing the breadth of the claim and that when ascertaining a claimant's intent, the Board should focus on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim, the Board finds that the Veteran, in his claim of August 1969, intended to seek service connection for all residuals of his in-service GSW.  Accordingly, although a claimant may mention a particular diagnosis when filing a claim, the claim may not be limited only to that diagnosis.  Id.  

Therefore, because the Veteran filed his first claim for service connection for the residuals of his in-service GSW within one year of his service separation, the proper effective date for the grants of service connection for injury to MGs II, III, and IV, a posterior right shoulder scar, a scar on the medial aspect of the right scapula, neuropathy of the right upper extremity, a fracture of the right sixth rib and a pleural cavity injury as residuals of a gunshot wound (GSW) of the right shoulder is August 5, 1969.  38 C.F.R. § 3.400.

B.  Increased initial ratings

Having established an effective date for service connection for the residuals of the in-service GSW, the Board will now turn to consideration of the initial ratings for those residuals (muscle injuries, scarring, neuropathy, broken 6th rib and pleural cavity injury).  

The Veteran testified at his August 2000 Board videoconference hearing that he was right hand dominant.  He said that any kind of repetitive motion involving the use of his right upper extremity resulted in pain in the center of his back and in his shoulder.  The Veteran further testified that he experienced numbness in the third, fourth and fifth fingers of his right hand.  He described experiencing shortness of breath and said that the areas around the entry and exit wounds were sensitive.  He said that he was unable to reach upwards for very long.  

The Veteran testified during his June 2006 Board videoconference hearing that his shoulder felt like everything was locked up and things would start to pull if he raised his right arm.  He said that he had experienced pain and pain on use in his back and right shoulder since his service separation.  The Veteran further testified that he had experiencing tingling in the fingers of his right hand since the GSW occurred.  He also said that he had numbing sensations around the entry and exit wounds.  The Veteran testified that he had had a chest tube put in for his collapsed lung and that he subsequently experienced shortness of breath from fairly minor exertion thereafter.  

The Veteran provided similar testimony at his September 2009 Board videoconference hearing.

1.  General legal criteria

Disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. §§ 3.102, 4.3, 4.7.  In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25.  One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  

In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that the described conditions in that case warranted 10 percent evaluations under three separate diagnostic codes, none of which provided that a veteran may not be rated separately for the described conditions.  The Court held that the conditions were to be rated separately under 38 C.F.R. § 4.25, unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. Esteban, at 261.  

The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions."  Id. at 262.  In this regard, muscle injury ratings will not be combined with peripheral nerve paralysis ratings for the same part, unless affecting entirely different functions.  38 C.F.R. § 4.55(a).  

Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual.  Only one extremity is considered to be major and a person is presumed to be right-handed unless there is evidence of left-handedness.  38 C.F.R. § 4.69.  

Service medical records show that the Veteran is right handed.   Thus, the ratings for the right shoulder, arm and hand are to be made on the basis of the right upper extremity being the major extremity.  

2.  Medical evidence

Service medical records show that on June 10, 1967, the Veteran received a gunshot wound to the right chest/shoulder area.  Initial treatment consisted of debridement of the wounds, insertion of a chest tube for a collapsed lung, and medication.  The Veteran was transferred to a larger facility on June 19, 1967, where it was recorded that there had been no artery or nerve involvement.  Delayed primary closure of the wound was performed.  The Veteran was returned to duty on July 17, 1967, at which time the wound was described as well healed.  The Veteran has indicated that the wound separated again after he tried to carry a backpack and that additional treatment was given.  It was reported in an April 1968 entry that the GSW wound had involved the right hemithorax and shoulder and that two ribs were fractured.  The Veteran complained of pain associated with motion.  Examination was unremarkable except for evidence of a well-healed wound.  In the right shoulder there was minimal crepitus with motion.  The clinical impression was post-traumatic hyperesthesia and possible adhesions due to the wound.  On the appellant's service separation examination, a scar was noted on the back of the right shoulder.  

The Veteran was afforded a VA medical examination in November 1970.  The Veteran denied chest trouble but said that, at times, he had aching around the wound of the back that kept him awake.  He reported working for a farmer part-time and attending college.  On physical examination, there was a two-inch scar on the right anterior mid-chest at the interior axillary line and a smaller round scar over the posterior right shoulder with a third scar on the medial aspect of the right scapula.  Forward elevation, abduction, internal rotation and external rotation of the right shoulder were to 180 degrees, 90 degrees and 90 degrees, respectively.  An X-ray showed evidence of a fracture of the right sixth rib posteriorly with no metallic foreign bodies or other abnormalities identified.  Spirometry revealed maximum voluntary ventilation that was 89% of predicted.  The forced expiratory volumes (FEV) at 0.5 seconds and 1.0 seconds were 40 percent and 80 percent of predicted, respectively.  The spirogram was described as normal.

The Veteran was afforded another VA medical examination in July 1999; the examiner reviewed the Veteran's history and noted a wound to the right shoulder and chest, sustained in combat in Vietnam in June 1967.  The initial wounds were described as an open penetrating wound to the right shoulder region, and a corresponding exit wound to the right anterior shoulder, both without artery or nerve involvement.  Two ribs on the right side were also fractured, and a pneumothorax was observed on X-ray.  The wound was debrided and a chest tube was inserted.  The Veteran complained of a dull ache of the right shoulder in the vicinity of his initial injury, with no numbness or loss of strength.  The Veteran was noted to be right-handed.  On physical examination, there was pain on palpation of the Veteran's wounds, which were otherwise well-healed without deformity.  A three-centimeter (cm) posterior entrance wound was observed on the right shoulder.  A five-cm exit wound was observed on the inferior medial portion of the right scapula.  The overall functional impairment from the GSW was described as mild.  The pain from the rib injury was said to cause mild functional impairment.

There is no medical evidence of record related to the Veteran's service-connected GSW-related injuries for the period from 1971 to 1999.

The Veteran underwent another VA medical examination in May 2000.  The examiner reviewed the Veteran's medical records and noted a history of recurrent right shoulder and upper back pain since the GSW occurred in service.  The Veteran reported taking medication to alleviate his pain and that he had been unemployed since 1997.  On physical examination, the Veteran's right shoulder was without crepitus, heat, redness, swelling, effusion, or drainage.  Range of motion testing for the right shoulder revealed forward flexion to 160 degrees, extension to 50 degrees, abduction to 160 degrees, and adduction to 50 degrees.  Internal and external rotation were both to 60 degrees.  No additional limitation of motion based on fatigue, weakness, lack of endurance, or incoordination was noted.  The right shoulder musculature demonstrated a moderate amount of instability and weakness.  Radiographic examination of the right shoulder revealed findings that were within normal limits and a well healed 6th rib fracture.  The overall impairment from the GSW was described as moderate.

The evidence of record includes a private physician statement dated in December 2001.  The statement was apparently based on a review of the Veteran's medical history, including his service medical records.  The private physician stated that the Veteran had "severe muscle injury" to Muscle Groups II, III, and IV that were secondary to his in-service GSW.  The physician also indicated that the bullet fractured two ribs and that the Veteran had had a pneumothorax.  The physician stated that the Veteran experienced pain along the shoulder and scapula scars which indicated middle radicular group peripheral nerve damage, described as incomplete and moderate to severe in nature.  The physician also stated that the veteran had suffered lung damage that was demonstrated by the lower than expected findings during the 1970 spirometry testing.

The Veteran subsequently underwent another VA medical examination in January 2002; the examiner reviewed the claims file.  The Veteran reported that his symptoms at the time of the injury included dull pain with difficulty breathing.  The Veteran complained of having dull pain in the right shoulder and said that he used over-the-counter medication to alleviate the pain.  He also complained of intermittent numbness and said that the last three fingers on his right hand were usually numb.  He stated that the symptoms associated with his sixth rib fracture included a constant dull throbbing pain that was 6/10 in intensity.  The Veteran stated that his condition was unchanged from his previous examination.  On physical examination, no deformity, redness, swelling, or redness was observed.  No laxity or atrophy of the shoulder joint was noted.  There was some tenderness on palpation of the right shoulder, including point tenderness at the GSW scar sites over the deltoid and rhomboid muscles.  There was underlying tissue loss present within the exit wound scar.  Muscle strength of the right shoulder and arm were within normal limits on resistance testing.  Grip strength was 5/5.  Range of motion testing revealed forward flexion to 180 degrees, extension to 50 degrees, and abduction to 160 degrees, with cramping at the site of the exit wound.  Internal and external rotation were to 90 degrees.  Increased fatigability of the right shoulder was reported with use.  No subluxation and/or apprehension were observed.  A January 2002 VA X-ray of the Veteran's right shoulder confirmed the presence of mild osteoarthritis of the acromioclavicular joint.  The examiner rendered a clinical assessment of a GSW wound to the right shoulder, with moderate functional impairment. 

Review of the Veteran's VA medical treatment records dated between August 1999 and May 2012 reveals that he mostly sought treatment for his psychiatric problems.  A February 2002 note indicates that the appellant had numbness of the fourth and fifth digits of the right hand in an ulnar nerve distribution.  Nerve conduction studies showed a mild ulnar neuropathy at the right elbow.  The appellant's current problem list includes a notation of right shoulder/wrist pain.

The Veteran most recently underwent a VA medical examination in July 2012; the examiner reviewed the claims file.  The Veteran stated that he was right-handed.  He reported that he became short of breath after one to two flights of stairs.  He also reported tingling and crawling sensations in the area around the GSW scars.  On physical examination, there was no muscle atrophy.  There was no x-ray evidence of retained metallic fragments.  The examiner stated that the cardinal signs of weakness and fatigue-pain had been consistently present for MGs II-IV.  There was some loss of deep fascia in the exit scar.  There was adherence of the exit wound scar to the rhomboid muscle resulting in decreased range of motion for the right shoulder.  The examiner stated that the scars were not painful or unstable and covered an area of 16 square centimeters.  Pulmonary function testing revealed and FEV1/FVC of 73%; the examiner stated that this parameter most accurately reflected the Veteran's level of disability.  (Post-bronchodilator testing was not performed because the pre-bronchodilator testing was normal.)  The examiner noted that the Veteran had had a FEV1/FVC ratio of 62% in 1970, and noted that a GSW would typically result in restrictive lung disease.  

3.  Analysis

Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so.  See Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991).  See also VAOPGCPREC 11-97 (March 25, 1997).  The holding of the Court in Karnas requires that in all cases VA fully adjudicate a veteran's claim under both the new and old law and regulation to determine the extent to which each may be favorable to the veteran.  DeSousa v. Gober, 10 Vet. App. 461 (1997).

Pursuant to 38 U.S.C.A. § 7104(a), the Board's decisions must be based on consideration of all evidence and material of record, rather than merely evidence which pre-dates or post-dates a pertinent change to VA's rating schedule.  In determining the extent of disability existing prior to a regulatory change, the Board may not simply ignore documents post-dating the regulatory change, since such documents could provide evidence that an increase in disability occurred at an earlier time.  Likewise, in determining the level of disability existing subsequent to a regulatory change, the Board may not simply ignore evidence pre-dating the change, since such evidence may bear upon the level of disability existing subsequently. See VAOPGCPREC 3-2000 (April 10, 2000).

a.  Muscle injuries

On the basis of the available service medical treatment records, service connection for a GSW involving MGs III and IV, "moderately severe, right anterior shoulder and back, and healed fracture, right sixth rib," was granted in a rating decision issued in January.  The RO assigned a 30 percent disability rating under Diagnostic Codes 5303 and 5304.

At the time of the Veteran's initial claim in August 1969, the factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot or other trauma were listed as:

(c)  Moderately severe disability of muscles.  
Type of injury.  Through-and-through or deep penetrating wounds by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization.
History and complaint.  Service department record or other sufficient evidence showing hospitalization for prolonged period in service for treatment of wound of severe grade.  Record in the file of consistent complaint of the cardinal symptoms of muscle wounds.  Evidence of unemployability because of inability to keep up production standards is to be considered, if present.
Objective findings.  Entrance and (if present) exit scars relatively large, and so situated as to indicate track of missile through important muscle groups.  Indications on palpation of moderate loss of deep fascia or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side.  Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss.  

(d)  Severe disability of muscles.  
Type of injury.  Through-and-through or deep penetrating wounds due to high velocity missile, or large or multiple low velocity missiles, or explosive effect of high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization.
History and complaint.  As under moderately severe, in aggravated form.
Objective findings.  Extensive ragged, depressed, and adherent scars of the skin so situated as to indicate wide damage to muscle groups in the track of the missile.  X-ray may show-minute, multiple, scattered, foreign bodies indicating the- spread of intermuscular trauma and the explosive effect of the missile.  Palpation shows moderate or extensive loss of deep fascia or of muscle substance.  Soft or flabby muscles in the wound area.  Muscles do not swell and harden normally in contraction.  Tests of strength or endurance compared with the positive sound or of coordinated movements show positive evidence of severe impairment of function.  In electrical tests, reaction of degeneration is not present but a diminished excitability to Faradism compared to the sound side may be present.  Visible or measured atrophy may or may not be present.  Adaptive contraction of opposing group of muscles, if present, indicates severity.  Adhesion of a scar to one of the long bones, of the scapula, pelvic bones, sacrum or vertebrae with epithelial sealing over the bone without true skin covering, in an area where the bone is normally protected by muscle, indicates the severe type.  Atrophy of muscle groups not included in the track of the missile, particularly of the trapezius and serratus in wounds in the shoulder girdle (traumatic muscular dystrophy), and induration and atrophy of an entire muscle following simple piercing by a projectile (progressive sclerosing myositis, may be included in the severe group if there is sufficient evidence of severe disability. 

38 C.F.R. § 4.56 (1969).

Muscle injuries in the same anatomical region, i.e., shoulder girdle and arm, forearm and hand, pelvic girdle and thigh, leg and foot, would not be combined, but instead, the rating for the major group affected was to 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.  

With respect to the major extremity, a moderate injury of MG II or III warranted a 20 percent evaluation and a moderate injury of MG IV warranted a 10 percent evaluation.  A moderately severe injury of MG II or III warranted a 30 percent evaluation and a moderately severe injury of MG IV warranted a 20 percent evaluation.  A severe injury of MG II or III warranted a 40 percent evaluation and a severe injury of MG IV warranted a 30 percent evaluation.  38 C.F.R. § 4.73, Diagnostic Codes 5302, 5303, and 5304.

Thus, the maximum evaluation for severe muscle impairment to each MG I through IV (the shoulder girdle) was 40 percent when a major extremity was involved.  38 C.F.R. § 4.73, Diagnostic Codes 5301, 5302, 5303, and 5304.  Two or more severe muscle injuries affecting the motion (particularly strength of motion) about the shoulder joint may be combined, but in combination may not receive more than the rating for unfavorable ankylosis of the scapulohumeral joint.  38 C.F.R. § 4.55.  Unfavorable ankylosis of the scapulohumeral articulation of the major extremity is evaluated as 50 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5200.

Giving the benefit of the doubt to the Veteran, his gunshot exit wound of the medial aspect of the right scapula does involve severe muscle damage.  Specifically, it was noted that there was a shattered sixth rib from the bullet and a requirement for a chest tube on the right between the fifth and sixth ribs due to pneumothorax.  In addition, the exit scar, over the rhomboid muscle (MG II) had some loss of deep fascia and interfered with proper shoulder movement due to adherence of the scar to the rhomboid muscle.  The medical evidence of record also establishes the presence of the cardinal signs of weakness and fatigue-pain for MGs II-IV.  As set out in the foregoing law and regulations, an evaluation separate from his rating for pleural cavity injury is to be assigned for that severe muscle impairment.  The Veteran was also wounded at the apex of the right shoulder, in the deltoid muscle area, and giving, the benefits of the doubt to the Veteran, that entrance wound reflects severe impairment of Muscle Groups III.  In addition, MG IV is involved and it is moderately severe.

Special rules apply for combination of the muscle impairment of the major shoulder girdle.  Under 38 C.F.R. § 4.55 (1969), two or more severe muscle injuries about the shoulder may not be rated in excess to that 50 percent evaluation assignable for unfavorable ankylosis of the scapulohumeral joint when the major extremity is involved.  The Board finds that an increased 50 percent evaluation is to be assigned for the combined muscle impairment caused by those injuries to MG II-IV.  This rating would also encompass any damage to MG I.  

The Board notes that, because the Veteran's gunshot wound injury of the right shoulder, with involvement of MGs II, III, and IV, has been evaluated as 50 percent disabling for over 20 years under Diagnostic Code 5200 as a result of this decision, that rating is considered to be a protected rating and cannot not be reduced unless there is a showing of fraud.  See 38 U.S.C.A. § 110 (West 2002); 38 C.F.R. § 3.951(b)(2012).

In addition, 50 percent is the maximum rating available for the major shoulder.  Thus, a 50 percent rating, but no greater, is warranted for the entire appellate time period for the GSW residuals of MGs II-IV. 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 an initial evaluation in excess of 50 percent for the MGs II-IV injury, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; and Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

b.  Scarring

Separate, compensable evaluations may be warranted for individual scars that are tender, painful, poorly nourished, ulcerated, or that limit the function or movement of the body part affected.  See Esteban v. Brown, 6 Vet. App. 259 (1994).  The rating criteria for scars were changed during the course of this appeal with the first change being, effective August 30, 2002.  See 67 Fed. Reg. 49590-49599 (July 31, 2002).  The rating criteria for scars were subsequently changed, effective October 23, 2008.  See 73 Fed. Reg. 54708-12 (Sept. 23, 2008).  In keeping with VA practice and appropriate precedent, the rating agency must apply the version of the regulation that is most favorable to the veteran when the regulations changed during the pendency of an appeal.  See VAOPGCPREC 7-03 (2003).  

Under the criteria in effect prior to August 30, 2002, Diagnostic Code 7803 afforded a 10 percent rating for a scar, regardless of size, that was superficial, poorly nourished, or characterized by repeated ulceration.  Diagnostic Code 7804 awarded 10 percent for a superficial scar that was tender and painful upon objective observation, regardless of size.  Diagnostic Code 7805 does not differ, directing that other scars be evaluated on the limitation of the function of the part affected.  38 C.F.R. Part 4 (2002).

Under the criteria that went into effect on August 30, 2002, Diagnostic Code 7801 directed that scars other than on the head, face, or neck that are deep or cause limited motion are evaluated as 10 percent disabling for areas exceeding 6 square inches.  Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a deep scar is one associated with underlying soft tissue damage.  Diagnostic Code 7802 provides that scars other than head, face, or neck scars that are superficial and do not cause limited motion will be rated as 10 percent disabling for areas of 144 square inches or greater.  Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a superficial scar is one not associated with underlying soft tissue damage.  Diagnostic Code 7803 notes that unstable superficial scars are evaluated as 10 percent disabling.  Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage.  Diagnostic Code 7804 provides that superficial scars that are painful on examination are rated as 10 percent disabling.  Note (1) states that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) states that in this case, a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation.  Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. 

Effective October 23, 2008, and continuing currently, the rating criteria became as follows: One or two scars that are unstable or painful are rated 10 percent disabling.  Three or four scars that are unstable or painful are rated 20 percent disabling.  Five or more scars that are unstable or painful are rated a maximum of 30 percent disabling.  An unstable scar was defined as one where, for any reason, there is frequent los of covering of skin over the scar.  If one or more scars are both unstable and painful, then an additional 10 percent is to be added to the rating based on the number of unstable or painful scars.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2012).  

The appellant has scarring due to his service-connected right shoulder GSW and treatment thereof.  The medical evidence of record discussed above indicates that the right posterior shoulder scar is tender to palpation, as is the right anterior scapula scar.  The right anterior mid-chest scar, however, is not associated with chronic skin changes and is nontender.  Further, the evidence does not show that any one of these scars itself results in any limitation of function of the right shoulder, arm or chest that is not already compensated for in the rating for the through-and-through muscle damage or pleural cavity injury.  For example, the exit wound scar has adhered to the rhomboid muscle and there is some loss of deep fascia.  However, those findings have been specifically addressed in the finding of severe disability for MG II.  Therefore, a separate 10 percent evaluation is warranted for the right posterior shoulder scar and the right scapular scar under Diagnostic Code 7804, but a separate 10 percent evaluation is not warranted for the right anterior mid-chest scar which is nontender.  Ten percent is the maximum evaluation available under Diagnostic Code 7804.  Furthermore, there is no clinical indication that the area of any scar exceeds 12 square inches (77 sq. cm).  In addition, under the criteria set forth in the October 2008 version of Diagnostic Code 7804, two scars that are unstable or painful are rated 10 percent disabling; a 20 percent rating would require three or four scars that are unstable or painful.  Therefore, the October 2008 version of the regulation is less favorable to the Veteran and will not be applied to his claim.

An evaluation in excess of ten percent is not warranted for either the entry wound scar or the exit wound scar because there is no indication that these scars limit the function of the appellant's right shoulder or arm in any way that is not already contemplated by any other assigned rating code.  See Esteban v. Brown, 6 Vet. App. 259 (1994).  Therefore, a higher evaluation is not available for the scars alone based on limitation of function.  See 38 C.F.R. § 4.14.

The Board notes that, in June 2006, in connection with a June 2003 rating action, the Veteran and his attorney withdrew their appeal as to the issues of entitlement to a disability rating in excess of 10 percent for the right shoulder GSW wound and for the right scapular GSW scar effective from 1999.

The Board is unable to identify other appropriate Diagnostic Codes that would address separate and distinct manifestations attributable to the Veteran's scars.  Nor do any other skin ratings appear applicable.  Under various other rating criteria applicable to other types of scars during the period for appellate review, potential for higher ratings for such scars exists.  However, as discussed above, none of those criteria apply here.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against initial scar evaluations in excess of 10 percent each, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; and Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

c.  Neuropathy

Disease of the peripheral nerves of the upper extremities are rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8510 to 8719.  The Board initially notes that the Veteran is currently assigned a 50 percent evaluation for GSW injury to MGs II-IV which act on the right (major) shoulder joint.  A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions.  38 C.F.R. § 4.55(a).  In addition, the appellant has been granted separate evaluations for the scars at the entrance and exit wound sites.  Therefore, the hyperesthesia and dysesthesias in the area of the bullet entrance and exit wound sites do not provide the basis for a separate evaluation for nerves in the right shoulder.  See 38 C.F.R. § 4.14.  However, neuropathy affecting the right (major) forearm/hand has been identified and will be rated here.

The term "incomplete paralysis" with this or other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree.  See 38 C.F.R. § 4.124a.

Mild incomplete paralysis of the median or the ulnar nerve, affecting either the major (dominant) or minor extremity, warrants a 10 percent rating.  38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8516.

Mild incomplete paralysis of the upper radicular nerve group (5th and 6th cervicals) or the middle radicular nerve group, the lower radicular nerve group or all radicular nerve groups or the musculospiral (radial nerve) nerve, affecting either the major (dominant) or minor extremity, warrants a 20 percent rating.  38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8511, 8512, 8513. 

A 30 percent evaluation is warranted for moderate incomplete paralysis of the musculospiral (radial), median or ulnar nerve if affecting the major extremity.  38 C.F.R. § 4.124a, Diagnostic Codes 8514, 8515, 8516.

A 40 percent evaluation is warranted for moderate incomplete paralysis of the upper radicular group (5th and 6th cervicals), the middle radicular group, the lower radicular group, or all radicular groups, if affecting the major extremity.  38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8511, 8512, 8513.

Severe incomplete paralysis of the upper radicular group, middle radicular group, lower radicular group, radial or the median nerve warrants a 40 percent rating if affecting the minor upper extremity, and 50 percent if affecting the major upper extremity.  Sixty (60) percent is warranted for complete paralysis of the minor upper extremity and 70 percent for complete paralysis of the major upper extremity.  38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8511, 8512, 8514, and 8515.

The evidence of record includes a December 2001 private medical opinion that the appellant's middle radicular group was affected by the path of the bullet that entered the appellant's right shoulder in 1967 in Vietnam.  As indicated by the EMG testing conducted in conjunction with the January 2002 VA medical examination, the appellant has mild ulnar neuropathy in the right elbow, and mild median neuropathy in both wrists.  The appellant has reported that he has experienced tingling and numbness in the fingers of his right hand as a result of the 1967 GSW.

After considering the totality of the evidence, and due to the fact that the Veteran has consistently reported the same symptoms of numbness, tingling, and pain throughout this appeal, the Board finds that an initial rating of 20 percent disability rating is warranted for the Veteran's neuropathy of the right upper extremity under Diagnostic Code 8513, all radicular groups.  However, the evidence of record does not support a finding of moderate neurological impairment of the right upper extremity such that an increased rating of 40 percent would be in order.  According to all examination reports of record, the appellant basically experiences only numbness of the fingers of the right hand with no functional loss in the hand, with no other neurological complaints.  His reflexes, coordination, and sensation have all been within normal limits, and according to the February 2002 EMG study, his neuropathy was mild.  Overall, the preponderance of the evidence is therefore against a disability rating in excess of 20 percent.

The Board notes that, as reflected in the June 2008 Joint Motion for Partial Remand, the appellant withdrew his appeal as to the issue of entitlement to a disability evaluation in excess of 20 percent for neuropathy of the right upper shoulder effective from 1999.

The preponderance of the evidence is against a disability rating in excess of 20 percent for the Veteran's neuropathy of the right upper extremity, secondary to a GSW to the right shoulder.  As a preponderance of the evidence is against the award of an increased initial rating, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

d.  Pleural cavity injury

The pertinent rating criteria have been changed during the course of this appeal.  The rating criteria for respiratory disorders were initially changed, effective October 7, 1996.  See 61 Fed. Reg. 46720 (1996).  The regulations pertaining to the evaluation of respiratory conditions were later amended, effective October 6, 2006.  See 71 Fed. Reg. 52457-52460 (2006) (codified at 38 C.F.R. § 4.96 (2007)).  In keeping with VA practice and appropriate precedent, the version of the regulation that is most favorable to a claimant should be applied when the regulations change during the pendency of an appeal.  See VAOPGCPREC 7-03 (2003).  

In 1969, pursuant to Diagnostic Code 6818, moderate residuals of pleural cavity injuries (including gunshot wounds) with a bullet or missile retained in a lung with pain or discomfort on exertion, or with scattered rales or some limitation of excursion of the diaphragm or of lower chest expansion, warranted a 20 percent evaluation.  A 40 percent evaluation required moderately severe residuals with pain in the chest and dyspnea on moderate exertion confirmed by an exercise tolerance test, adhesions of the diaphragm with restricted excursions, moderate myocardial deficiency, and one or more of the following: thickened pleura, restricted expansion of the lower chest, compensating contralateral emphysema, deformity of the chest, scoliosis, and hemoptysis at intervals.  38 C.F.R. § 4.97, Diagnostic Code 6818.

Based on the Veteran's reports of shortness of breath and pain or discomfort on slight exertion since the 1967 GSW, the in-service occurrence of a pneumothorax connected to the GSW and the spirometry findings of November 1970 that indicated some mild restrictive impairment, namely the 89% of predicted Maximal Voluntary Ventilation and an FEV1 value of 62% predicted, the Board finds that the Veteran's symptomatology more closely approximated that required for a 20 percent evaluation under Diagnostic Code 6818.  38 C.F.R. § 4.7.  However, an evaluation in excess of 20 percent was not warranted because the Veteran's symptoms were not more nearly congruent with those required for the next higher rating of 40 percent.  There is no medical evidence of record that indicates that the Veteran has ever had adhesions of the diaphragm, with excursions restricted, moderate myocardial deficiency, thickened pleura restricted expansion of the lower chest, compensating contralateral emphysema, deformity of the chest, scoliosis or hemoptysis at intervals.  Nor has the Veteran provided any testimony or written statements to that effect.

Effective October 7, 1996, VA revised the criteria for diagnosing and evaluating diseases of the trachea and bronchi (Diagnostic Codes 6600-6604) and nontuberculous lung diseases (Diagnostic Codes 6800-6847), including traumatic chest wall defects, pneumothorax, gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, etc.  See 61 Fed. Reg. 46720-46731 (1996).  See also Diagnostic Code 6843 and Note (3).  The new criteria deleted Diagnostic Code 6818 that contained the criteria for evaluating pleural cavity injury.  The term "pleural cavity injury" was reclassified as "traumatic chest wall defect, pneumothorax, hernia, etc." and was assigned to Diagnostic Code 6843.  However, Note (3) to Diagnostic Code 6843 indicated that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion were to be rated at least 20 percent disabling.  See 38 C.F.R. § 4.97, Diagnostic Code 6843 (1997).

Under these revised criteria, traumatic chest wall defects, including pneumothorax, are evaluated under the General Rating Formula for Restrictive Lung Disease.  Under this Formula, a 30 percent rating is warranted where the FEV-1 result is 56 to 70 percent; the FEV-1 /FVC value is 56 to 70 percent; or the DLCO (SB) result is 6 to 65 percent of predicted.  38 C.F.R. § 4.97, Diagnostic Code 6843.  A 60 percent rating is warranted for an FEV-1 result is 40 to 55 percent of predicted value; or the FEV-1/FVC value is 40 to 55 percent of predicted value; or the DLCO (SB) result is 40 to 55 percent of predicted.  A 100 percent rating is warranted when the FEV-1 is less than 40 percent predicted, or; the FEV-1/FVC is less than 40 percent, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure) or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; patient requires oxygen therapy.  The rating criteria contemplate PFT results post-therapy, which is the standard basis for comparison of pulmonary function.  See 38 C.F.R. § 4.96(d)(5).  

The Board notes that when VA amended the Rating Schedule concerning respiratory conditions, effective from October 6, 2006, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions.  A new paragraph (d) to 38 C.F.R. § 4.96, is titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845."  In pertinent part, this regulation states that post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post- bronchodilator studies should not be done and states why.  38 C.F.R. § 4.96(d)(4).  Thus, this change in the regulations did not alter any of the specific criteria listed in Diagnostic Code 6843.  

Review of the evidence of record reveals that the Veteran's residuals of a GSW with right pneumothorax has not resulted in a FEV-1 value of 56 to 70 percent predicted or an FEV-1/FVC value of 56 to 70 percent.  His July 2012 PFT results included an FEV1 value that was 127% of predicted and an FEV1/FVC value that was 73% of predicted.  (DLCO)(SB) was not performed because it was not indicted with normal test results such as the Veteran's.  These findings would only support a 10 percent rating under the current criteria.

The 20 percent disability evaluation for residuals of an injury of the right side of the chest is assigned for moderate residuals of a pleural cavity injury.  In this case the Veteran's exertional dyspnea and mildly abnormal pulmonary function tests are contemplated in the rating for moderate residuals.  The criteria required for an evaluation of moderately severe residuals, such as adhesions of the diaphragm, myocardial deficiency, contralateral emphysema, deformity of the chest of hemoptysis are not shown.  Moreover, there are no retained foreign bodies in the right lung and more than moderate residuals of a pleural cavity injury are not otherwise shown.  The symptomatology required for the assignment of a higher disability rating for this service-connected impairment has not been shown.

Therefore, as the preponderance of the evidence is against an initial evaluation in excess of 20 percent for the pleural cavity injury associated with the 1967 GSW, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; and Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

e.  Other considerations

Notwithstanding the above discussion, an increased evaluation for the various disabilities could be granted if it were demonstrated that that particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  The Board has therefore considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  See Barringer v. Peake, 22 Vet. App. 242 (2008).  

Referral for extraschedular rating is warranted where the level of disability is not contemplated by the rating schedule and the disability picture exhibits other related factors showing unusual or exceptional disability picture.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required."  Id. 

Here, the record does not establish that the rating criteria are inadequate for rating any one of the Veteran's service-connected disabilities at issue in this case.  The competent medical evidence of record shows that his overall disability is primarily manifested by pain, limitation of motion and fatigue.  The applicable diagnostic codes used to rate the disability provide for ratings based on limitation of motion and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  

A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The schedular rating criteria at 38 C.F.R. §§ 4.56, 4.71a, 4.73 4.96, 4.97, 4.118 provide for rating the residuals of various GSW injuries such as the Veteran's, and specifically include as part of the schedular rating criteria symptoms or findings of pain, muscle atrophy, scars, neurological impairment, loss of muscle strength, loss of range of motion, and the overall severity of the impairment, among other specific rating criteria that were considered in this case.  For this reason, the Board finds that the assigned schedular ratings are adequate to rate all of the residuals from the 1967 GSW.  The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. 

Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra.  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).

The Board acknowledges that the appellant, in advancing this appeal, believes that his various disabilities have been more severe than the assigned disability ratings reflect.  The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to the disabilities related to the GSW residuals since they consider the overall industrial impairment due to these service-connected conditions.  The appellant maintains that he experiences problems with his daily activities that are due to these disabilities.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of each disability.  And, in fact, the ratings assigned herein are based in part on his descriptions of his problems with his back, shoulder, chest, arm and hand due to the residuals of the 1967 GSW.

The preponderance of the most probative evidence does not support assignment of any higher rating for any disability on appeal.  The findings needed for an evaluation in excess of the assigned ratings are not currently demonstrated.  Since the preponderance of the evidence is against an allowance of an evaluation in excess of those assigned herein under the schedular criteria, the benefit of the doubt doctrine is inapplicable.  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability rating due to individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, while initial ratings are at issue, a claim of unemployability due to the service-connected disabilities of the muscles, skin and nerves in the right upper extremity was not raised by the Veteran in connection with his GSW-related claims.  His initial claim for TDIU was submitted in connection with his June 1999 claim for service connection for posttraumatic stress disorder.  Furthermore, review of the evidence of record indicates that the appellant was employed between his service separation and 1997, and that his loss of employment in 1997 was due to his PTSD.  

Finally, in light of the holding of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether the appellant is entitled to a "staged" rating for any one of his GSW-related disabilities.  As reflected in the decision above, the Board has not found variation in his symptomatology or clinical findings that would warrant the assignment of any staged rating for any such disability.  Based upon the record, the Board finds that at no time during the claim/appellate period have the disabilities on appeal been more disabling than as currently rated.


ORDER

An effective date of August 5, 1969 is assigned for the grant of service connection for the residuals of the in-service GSW, including MGs II, III and IV; the scars of the posterior shoulder and anterior scapula; the right upper extremity neuropathy; the right 6th rib fracture; and the pleural cavity injury.

An initial evaluation of 50 percent, but not more, is assigned for the MGs II-IV under Diagnostic Code 5200.

An initial evaluation of 10 percent, but not more, is assigned for the posterior right shoulder scar.

An initial evaluation of 10 percent, but not more, is assigned for the anterior right scapula scar.

An initial noncompensable evaluation is assigned for the anterior right chest wall scar.

An initial evaluation of 20 percent, but not more, is assigned for the right upper extremity neuropathy.

An initial evaluation of 20 percent, but not more, is assigned for the pleural cavity injury.


REMAND

A determination has been made that additional development is necessary with respect to the remaining issues on appeal.  Accordingly, further appellate consideration will be deferred and this case remanded to the RO for action as described below.

The service medical records and other medical evidence in the claims file indicate that the bullet that passed through the Veteran's shoulder in 1967 fractured or shattered parts of more than one rib.  In the January 1971 rating decision, the RO granted service connection for a fractured right 6th rib and rated that condition in conjunction with the MG II and III disability.  In the June 2003 rating decision, the RO granted a separate compensable rating for the right 6th rib disability based on the findings of the January 2002 VA medical examination.  A ten percent evaluation was assigned for 'chronic pain syndrome' with moderate functional impairment under Diagnostic Code 5297 (removal/resection of ribs).  However, review of the report from the January 2002 VA medical examination reveals that the examiner did not state with any specificity what the nature of the functional impairment was.  In addition, Note (1) to Diagnostic Code 5297 states that the rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity.

Therefore, the Board finds that it is not possible to evaluate the appellant's fractured rib disability based on the medical evidence currently of record, especially since it does not appear that any comprehensive evaluation has been accomplished that addresses the questions of how many and which ribs were fractured and what exactly is the functional impairment associated with the fractured rib(s).  Thus, on remand, the appellant should be afforded another VA medical examination.  

These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions.  See Colvin v. Derwinski, Vet. App. 171, 175 (1991).  In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case.  See Murphy v. Derwinski, 1 Vet. App. 78 (1990).  The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts.  Beaty v. Brown, 6 Vet. App. 532 (1994).  Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claims on appeal.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following:

1.  Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed.

2.  Obtain from the appellant the names and addresses of all VA, government, and private physicians or chiropractors and/or medical facilities that have provided him with any treatment for his claimed condition since 1969, and secure all available relevant reports not already of record from those sources.  In particular, obtain all outstanding VA treatment records.  

3.  To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made.  The appellant and his attorney should also be informed of the negative results and be given opportunity to secure the records.

4.  After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for a VA orthopedic examination by a physician to determine the nature, onset date, and severity of the Veteran's right rib fractures caused by a bullet in 1967.  The entire claims file (i.e., including the electronic records contained in Virtual VA) and this remand must be made available to the examiner for review in conjunction with the examination.  The examiner must indicate that said review was accomplished.  

If the physician does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available must be printed and provided to the physician for review.

Any testing deemed necessary, such as imaging studies, must be performed.

The examiner must offer an opinion as to whether the onset of any current disorder(s) is/are attributable to the Veteran's active military service, as follows:

(a)  Does the appellant currently have any chronic right rib pathology?  If so, identify each rib that is involved and list each diagnosis for each rib.

(b)  If arthritis is diagnosed, please state whether its onset was within one year of the appellant's separation from service in August 1969.

(c)  What functional impairment or other pathology is associated with or due to the rib cage pathology?  Identify the specific anatomic part and the associated severity of the identified pathology.

Note:  If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner must clearly and specifically so specify in the report, and explain why this is so.  In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the appellant's claimed right ankle disorder.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

5.  Upon receipt of the VA medical reports, conduct a review to verify that all requested opinions have been offered.  If information is deemed lacking, refer the report to the VA examiner for corrections or additions.  See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.).  

6.  After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and re-adjudicate the claim on appeal (initial evaluation from 1969).  The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, to include 38 C.F.R. §§ 3.310, 3.321, Allen v. Brown, 7 Vet. App. 439, 448 (1995); and Hart v. Mansfield, 21 Vet. App. 505 (2007).

7.  If any benefit sought on appeal remains denied, provide the appellant and his representative a Supplemental Statement of the Case (SSOC) and an appropriate period of time for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655.

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.

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).




			
	KATHLEEN K. GALLAGHER 	K. PARAKKAL
	Veterans Law Judge,	Veterans Law Judge,
	Board of Veterans' Appeals	Board of Veterans' Appeals




		
	JOY A. MCDONALD
	Veterans Law Judge,
Board of Veterans' Appeals


Department of Veterans Affairs