Citation Nr: 1323655 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 04-44 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. The Veteran's claim comes before the Board of Veterans Appeals (Board) on appeal from December 2003 and July 2009 rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Louis, Missouri. In September 2005, the Veteran testified at a Board hearing at the local RO. A copy of the transcript is associated with the claims file. In January 2007 and in October 2007 the Board remanded the matter for additional development. In June 2009, the Board issued a decision denying the Veteran's claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2010, a Joint Motion for Partial Remand (Joint Motion) to the Board of the decision on appeal was granted by the Court. The appeal was remanded to the Board for several reasons, including procuring an adequate examination, to consider separate ratings for muscle groups damaged by the through and through gunshot wound, and to consider a separate rating for residual scars. The Court vacated the portion of the Board's decision that denied an increased rating for a gunshot wound of the right (major) shoulder with residual traumatic arthritis and loss of motion, but did not vacate the portion of the Board's decision that granted the Veteran a separate 30 percent rating for his neurological manifestations of his right shoulder. The appeal was remanded by the Board for additional development in accordance with the Joint Motion in October 2010. In April 2012, the Board granted a 40 percent disability rating for traumatic arthritis and loss of motion of the right shoulder as well as an earlier effective date for the grant of service connection for entrance and exit wound scars of the right upper extremity. The remaining issues were again remanded for further development. Subsequently, in March 2013, the Board denied entitlement to a compensable initial rating for entrance and exit wound scars and remanded the remaining issue of entitlement to separate compensable rating or ratings for muscle injures for further development. The case has now been returned to the Board for appellate review. As a final preliminary matter, the Veteran's Virtual VA electronic record has also been reviewed in conjunction with his claim. Of note, the electronic record includes additional VA treatment records as well as a June 2013 brief submitted by the Veteran's representative. FINDINGS OF FACT 1. The preponderance of the competent medical evidence demonstrates that only Muscle Groups II and III are affected by the gunshot wound to the right (major) shoulder; the remaining muscle groups of the shoulder girdle and arm are not involved. 2. The Veteran's service-connected residuals of a gunshot wound of the right (major) shoulder are productive of no more than slight impairment of Muscle Groups II and III. CONCLUSION OF LAW The criteria for separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.73, Diagnostic Codes 5302, 5303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in October 2003 and October 2007 that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the October 2007 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in October 2007, and the claim was most recently readjudicated in a June 2013 supplemental statement of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). As such, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and VA examinations. A review of Virtual VA includes additional VA treatment records dated from May 2013, which were considered in the June 2013 supplemental statement of the case. Moreover, the Veteran's statements in support of the claim, including his hearing testimony, are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Additionally, most recently, the Veteran was afforded a VA examination in May 2013 to evaluate the severity of any related muscle injuries. The Board finds that the VA examination is adequate because, as discussed below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent May 2013 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the September 2005 Board hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, including evidence that the Veteran might submit that may have been overlooked. The Veteran was also specifically asked questions concerning the severity of his gunshot wound residuals to the right shoulder. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). Finally, the Board finds that there was substantial compliance with the Board remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, in its prior remands, the Board directed the AOJ to obtain additional VA treatment records, request information from the Veteran concerning any private treatment and afford the Veteran an adequate VA examination. As discussed above, the AOJ obtained VA treatment records and the Veteran was afforded a VA examination in May 2013 that is adequate for appellate review. Moreover, in a March 2013 letter, the AOJ requested that the Veteran provide information concerning any private treatment received, to which the Veteran did not respond. Accordingly, the Board finds that there has been substantial compliance with the Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis The present appeal includes the issue of whether the Veteran is entitled to a separate rating or ratings for any injuries to muscle groups I, II, and III. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Initially, the Board notes that in its June 2009 decision, a separate 30 percent rating was awarded for the neurological manifestations associated with the Veteran's right shoulder disability. Subsequently, in its April 2012 Board decision, the Board awarded a 40 percent disability rating for traumatic arthritis with loss of motion for the Veteran's residuals of gunshot wound to the right shoulder. Most recently, in March 2013, the Board denied entitlement to a compensable rating for entrance and exit wound scars of the right shoulder. Accordingly, these matters are not before the Board and this decision solely addresses whether a separate rating or ratings is warranted for any muscle injuries. The Veteran filed his current claim for an increased rating for residuals of a gunshot wound to the left shoulder in September 2003. He was afforded a VA examination in November 2003. The claims file was reviewed. The Veteran reported pain and trouble sleeping. He also indicated that he had to have work modifications because of progressive pain. On physical examination, in pertinent part, the Veteran's muscle strength on the right was 4/5 with abduction and flexion. There was no deltoid atrophy. The diagnosis was gunshot wound to the right shoulder with residual traumatic arthritis and loss of motion. A contemporaneous x-ray showed mild irregularity in the AC joints, which may indicate degenerative change; glenohumeral joints were normal bilaterally; and there was no evidence of fracture of dislocation. The examiner opined that limitation of motion was limited by pain, not fatigue or weakness. He was still able to work to full-time, but had to make several work modifications to ensure his employability. The Veteran was afforded another VA examination in December 2005. The Veteran reported sharp, shooting pain down his arm as well as numbness in his hand. Activities requiring him to raise his arm above his head were limited by fatigue, pain and the inability to move joint through range of motion. The examination report indicated that Muscle Groups I, II, III, IV and V were either injured or destroyed as evidenced by range of motion testing. However, while the physical examination documented range of motion testing and observed pain, it did not specifically address the severity of the muscle injuries. The diagnosis was right shoulder injury. Moreover, in contrast, a December 2005 VA nerves examination by the same examiner indicated that the right shoulder gunshot wound had not appeared to disable any additional joints of the right upper extremity. Further, in a separate VA joints examination, the same examiner indicated that the muscle groups penetrated were II, III and IV. It was also observed that there was no muscle herniation, adhesion, contraction or visible tissue loss. However, there was decreased abduction against pressure. The diagnosis was muscle injury from gunshot wound. In a June 2009 decision, the Board found that the a separate rating was not warranted under the rating criteria for muscle injuries. However, as noted above, the matter was remanded by the Court in accordance with the Joint Motion for further consideration as to whether a separate rating would be warranted. Subsequently, given that the December 2005 VA examination reports appeared to conflict at times, the Board remanded the case for a VA examination to address the severity of any muscle injuries. The Veteran was afforded another VA examination in November 2010. The examiner found no muscle herniation or loss of deep fascia or muscle substance. However, there was limitation of motion and muscle strength was observed to be 4/5 in flexion and abduction. However, as the examiner did not specifically address which muscle groups were involved or give an opinion on the severity of any muscle injury, an addendum was requested, which was completed in December 2011. However, the addendum barely discussed the specific muscle groups, only noting that muscle groups I, II, and III were involved and characterized the severity as slight only. Thus, the Board again remanded the case in April 2012 to afford the Veteran another VA examination. The Veteran was afforded another VA examination in April 2012. The examiner determined that only muscle groups I and II were involved. She also indicated that strength testing was normal and there was no muscle atrophy. There were no facial defects and the muscle injury did not affect muscle substance or function. However, she did indicate that there was consistent severe pain and consistent impairment of coordination. She also found that the Veteran's muscle injuries did not impact his ability to work. Nevertheless, the examiner failed to specify whether the symptoms associated with each muscle group involved were slight, moderate, moderately severe or severe as directed by the Board. Moreover, previous VA examinations had clearly indicated that additional muscle groups were involved; whereas, this examination report only addressed muscle groups I and II and provided no further explanation as to why the other groups previously identified were not addressed or involved. Thus, the Board remanded the case again to afford the Veteran another VA examination to clearly address which muscle groups were affected and the current severity of any muscle group affected. On remand, the Veteran was afforded another VA examination in May 2013. The claims file was reviewed. The Veteran reported being able to do things with the right arm as long as it was below the shoulder level. He mainly complained of stiffness and pain with overhead activities. On physical examination, the entrance wound at the right shoulder was anteriorly at the level of the deltopectoral line halfway between the clavicle and the axillary fold. It was flat with no evidence of hypersensitivity or reflex sympathetic dystrophy. It appeared to go right through the pectoralis major muscle and the exit wound was posteriorly in more inferior direction going through the posterior axillary fold, which would involve the latissimus dorsi and pectoralis major muscle. Again there was no evidence of hypersensitivity and the scar was flat. With motion of the shoulder, there were no major underlying adhesions. The examiner continued that based on the examination, the muscle groups affected were group II, which involved the pectoralis major, latissimus dorsi and teres major muscles, and group III since the muscle included the pectoralis major. The severity of the injuries to the muscle involved appeared to be slight only. There was no impairment of coordination and there was 5 out of 5 muscle strength in adduction, abduction, forward flexion, extension and internal rotation. There was also 5 out of 5 muscle strength in retraction and protraction of the shoulder. There was no loss of muscle substance, abnormal muscle swelling or hardness of any contraction. There were no deep scar adhesions noted. The examiner also observed that Muscle Group I was not involved since on examination, the direction of the Veteran's entrance and exit wound did not involve the trapezius, levator, scapular and serratus muscles. Muscle Groups IV and V were not involved as the entrance and exit wounds were in the axillary fold. Moreover, Muscle Group VI was not involved because again, from the projection of his entrance and exit wounds that involves the anterior and axillary fold and posterior axillary fold. The examiner also observed that no foreign bodies were seen on x-ray. Given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for rating purposes and of high probative value. VA treatment records throughout the course of the appeal have also been reviewed and considered. In sum, these records document complaints of right shoulder pain as well as tingling and numbness, slightly diminished strength and decreased range of motion. The Veteran has been diagnosed with mild osteoarthritis, and probably tendonitis, of the right shoulder. In statements of record and at the Board hearing, the Veteran reported right shoulder pain and decreased strength with tingling and weakness in his fingers that caused trouble sleeping as well as his ability to do certain activities. He also reported problems being able to perform his duties at work at an automobile plant. He further indicated that he experienced limitation of motion of his arm as well as muscle stiffness. The Board now turns to whether a separate compensable rating or ratings is warranted for any muscle injuries to the right shoulder. 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). 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. Diagnostic Code 5302 provides the criteria for rating injuries to Muscle Group II. See 38 C.F.R. § 4.73, Diagnostic Code 5302 (2012). Diagnostic Code 5303 provides the criteria for rating injuries to Muscle Group III. See 38 C.F.R. § 4.73, Diagnostic Code 5303 (2012). Muscle Group II includes the extrinsic muscles of the shoulder girdle that function to provide depression of the arm from vertical overhead to hanging at the side, downward rotation of the scapula, and, acting with Muscle Group III, forward and backward swing of the arm. These muscles consist of the pectoralis major II (costernal), latissimus dorsi and teres major, pectoralis minor, and rhomboid. See 38 C.F.R. § 4.73, Diagnostic Code 5302 (2012). Muscle Group III includes the intrinsic muscles of the shoulder girdle that function to provide elevation and abduction of the arm to the level of the shoulder and, acting with Group II, forward and backward swing of the arm. These muscles consist of the pectoralis major I (clavicular) and deltoid. See 38 C.F.R. § 4.73, Diagnostic Code 5303 (2012). Under Diagnostic Codes 5302 and 5303, a noncompensable rating is warranted for slight impairment of the dominant and non-dominant arm. If the impairment is moderate in degree, a 20 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 Codes 5302, 5303 (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). After reviewing the evidence of record and considering the relevant rating criteria outlined above, the Board finds that a separate rating or ratings for injuries to muscle groups is not warranted. In this regard, the most recent highly probative VA examination clearly showed that only Muscle Groups II and III were affected and provided a rationale as to why the other Muscle Groups of the right shoulder and arm were not involved. Moreover, after examining the Veteran and reviewing the claims file, the examiner characterized the Veteran's muscle disability severity as slight only, which is the criteria for a noncompensable rating. Again, this criteria takes into account the following objective findings: 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, which appears to adequately describe the Veteran's symptoms. Again, there have been no objective findings of atrophy, fascial defect or retained metallic fragments as observed on the most recent VA examination. Moreover, there is simply no evidence showing the Veteran's has a moderate injury to Muscle Groups II and III. Again, the medical evidence does not show any signs of 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, which are the criteria for a moderate disability. Although some diminished strength was observed at times, the Veteran's strength was still 4/5, which would reflect only slight impairment. Accordingly, the criteria for separate compensable rating or ratings for injuries to Muscle Groups II and III have not been met. Moreover, the Veteran's primary symptoms reported have been pain and limitation of motion, which are already contemplated in the 40 percent rating assigned for arthritis and limitation of motion. See, e.g., 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can only be combined if the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition). The Board has carefully reviewed and considered the Veteran's statements regarding the severity of residuals of from the gunshot wound to the right shoulder. The Board acknowledges that the Veteran, in advancing this appeal, believes that a separate disability rating for muscle injuries is warranted. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the medical evidence of record offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Hart, supra, are appropriate; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's muscle injures with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the rating criteria contemplate the Veteran's slight muscle disability. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Accordingly, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran testified at the Board hearing that his service-connected shoulder problems did not interfere with his work, and in a November 2011 VA examination, he reported that he retired from working in 2009 as he was eligible by age or duration of work. Significantly, the April 2012 VA examiner determined that the Veteran's muscle injuries did not impact his ability to work. Accordingly, there is no need for further analysis with respect to this matter. In conclusion, the Board finds that the preponderance of the evidence is against entitlement to separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder for the appeal period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. [ORDER ON NEXT PAGE] ORDER Entitlement to a separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs