Citation Nr: 1323959 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-16 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for residuals of a shell fragment wound (SFW) of the right shoulder. 2. Entitlement to a disability rating in excess of 10 percent for scars on the right chest prior to July 26, 2011, and entitlement to a disability rating in excess of 20 percent for scars on the right chest thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1943 to December 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which declined to increase the disability rating above 30 percent for residuals of a SFW of the right shoulder and declined to grant a compensable disability rating for scars on the right chest. The case has since been transferred to the Chicago, Illinois RO. In a July 2012 decision, the RO increased the Veteran's disability rating for a scar to 10 percent prior to July 26, 2011, and to 20 percent thereafter. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). This case was previously before the Board in July 2011, October 2012, and April 2013 when it remanded the Veteran's claims for additional development, specifically for a VA examination with opinion to adequately address the severity of the disabilities on appeal. The Veteran was provided with VA examinations with opinions in July 2011, and January 2013, and his claim was most recently readjudicated in a June 2013 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of entitlement to total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's dominant hand is his right hand. 2. A shell fragment wound (SFW) of the right shoulder is manifested by severe impairment of Muscle Group IV. 3. A SFW of the right shoulder is manifested by moderate impairment of Muscle Group I prior to January 20, 2013, and manifested by moderately severe impairment thereafter. 4. A SFW of the right shoulder is manifested by no more than slight impairment of Muscle Group III. 5. Throughout the entire appeals period, the Veteran's SFW of the right shoulder are manifested by painful scars. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 30 percent for SFW, right shoulder, Muscle Group IV, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.25, 4.56, 4.73, Diagnostic Code 5304 (2012). 2. The criteria for a separate disability rating of 10 percent prior to January 20, 2013, and 30 percent thereafter for SFW, right shoulder, Muscle Group I, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.25, 4.56, 4.73, Diagnostic Code 5301 (2012). 3. The criteria for a separate compensable evaluation for SFW, right shoulder, Muscle Group III, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.25, 4.56, 4.73, Diagnostic Code 5303 (2012). 4. The criteria for a disability evaluation in excess of 10 percent for residuals of SFW, right shoulder scars, prior to May 23, 2006 and in excess of 20 percent beginning July 26, 2011 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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. A VCAA letter dated in July 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. In a July 2011 statement, the Veteran informed the RO that he had no private treatment as his private treatment provider refused to examine his right shoulder. The Board finds that all relevant records identified by the Veteran as relating to this claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided VA examinations in August 2006, July 2011, and January 2013. The examiners considered the Veteran's claims of experiencing symptoms of pain, as well as the service treatment records, post-service treatment records, and conducting a physical examination. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). General Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Factual Background Service treatment records indicate that the Veteran is right-handed. In October 1944, while serving in the Siegfried Line near Luxembourg, the Veteran sustained several mortar fragment wounds. These include the following: (1) a slight lacerating wound involving the skin and subcutaneous tissues over the medial upper aspect of the right scapula; (2) a slight penetrating wound over the right acromion, and; (3) a slight penetrating wound located over the lateral aspect of his right mid-upper arm. The wounds were excised, debrided, and closed, and the Veteran was restored to active duty on November 9, 1944. The Veteran was again hospitalized in March 1951 after an abscess formed in the right shoulder secondary to one of the Veteran's shoulder wounds. At that time, foreign bodies were found in the soft tissues overlying the right shoulder and in the upper right arm near the humerus shaft. The abscess was opened by an incision and a drain was inserted. The foreign bodies were not removed at that time. In February 1952, the Veteran complained of chronic drainage from his right shoulder, and a foreign body was excised from his shoulder at that time. An April 1951 rating decision granted service connection for residuals of shell fragment wound (SFWs) to the shoulder, scapula, and right upper arm (Muscle Groups I and V) under Diagnostic Codes 5301 and 5305. The Veteran was initially granted a 10 percent evaluation from May 1948 to March 1951, a 40 percent evaluation from March 5, 1951 to March 25, 1951, a 100 percent evaluation from March 26, 1951 to March 28, 1951, and a 40 percent evaluation from March 29, 1951 onwards. The same rating decision granted a noncompensable evaluation to the Veteran's residuals of a SFW to the right chest. The Veteran was later afforded a VA examination in December 1960, which confirmed the injuries to Muscle Groups I and V. A January 1961 rating decision reduced the evaluation of the Veteran's right shoulder disability from 40 percent to 20 percent, effective March 28, 1961. That rating decision recharacterized the Veteran's injury as a SFW injury to the right shoulder, right Muscle Group IV. The decision continued the noncompensable evaluation of the Veteran's right chest injury. The Veteran appealed this decision to the Board, and in April 1962, the Board rated the Veteran's shoulder injury as 30 percent disabling of 'Muscle Groups IV and V,' effective as of March 28, 1961 and assigned diagnostic code 5304, applicable to Muscle Group IV. The noncompensable evaluation of the Veteran's right chest injury was unchanged. The Veteran contacted the RO to request increased disability evaluations in May 2006. During an August 2006 VA examination, the Veteran complained of intermittent pain on a daily basis brought on by excessive use of the right arm and overhead use of his right shoulder and arm. He denied any instability of the shoulder; however, he reported crepitation at times. He reported he is not taking any medication. He rated his pain as 5/10 (baseline) and stated that when he is having an acute flare (severe pain) he rates his pain at 9/10. The frequency of this pain is variable upon his levels of activity; however, the duration of his pain episode is about an hour a month. At times of flare, stopped all activities due to pain. He denied warmth or swelling, but reported that his shoulder would become red. The Veteran was retired and had previously worked as a quality control manager for 13 years and as an inspector in pipe manufacturing for 16 years. Upon physical examination, the right shoulder exhibited no edema, warmth or erythemia. Point tenderness was present over the acromioclavicular joint (AC) joint and along medial supraspinatus. He also had well-healed scars from the shell fragment wound. Range of motion included abduction to 160 degrees actively, and to 180 degrees passively, with mild pain on passive movement. Forward flexion was to 160 degrees actively, and to 170 degrees passive with pain beyond that point. The examiner noted that he could not determine any additional function impairment due to pain or pain on repeated use without resort to mere speculation and subjectivity. An x-ray report dated in August 2006 showed a metallic density in the soft tissues lateral to the humeral shaft. In an August 2006 private MRI note, the examiner noted moderately severe degree of impingement upon the supraspinatus with tendonosis; however, the signal intensity as such that small partial thickness tears could not be excluded. The diagnoses were status-post shell fragment wound to the right shoulder with posttraumatic degenerative joint changes with associated impingement and retained metal fragments. In a May 2009 substantive appeal, the Veteran complained of extremely heavy weight to the shoulder by doing any simple yard work. He also reported his arm will lock up when hammering, sawing, or paining or with his am above his head for any length of time. During a July 2011 VA examination, the Veteran complained of right shoulder and arm pain. He reported no additional evaluation or treatment for the shell fragment wound. The Veteran complained that his present symptoms began approximately eight years ago. He described intermittent neck pain on a daily basis and stated that his pain radiates to the right shoulder and right arm into the hand. Paresthesias were in a similar distribution. He complained of weakness with difficulty working overhead and carrying objects such as a gallon of milk. He took Tylenol each day and used lidocain ointment applied to the trapezial area daily with some improvement. Activities of daily living were noted as compromised with some difficulty dressing and personal hygiene. His symptoms fluctuated, but were relatively consistent and he did not experience flare-ups. Upon physical examination, the Veteran complained of tenderness at the anterior shoulder. Range of motion was noted to 170 degrees on passive movement, and to 120 degrees on active movement with painful endpoint. Abduction was noted to 170 degrees passively and to 110 degrees actively with painful endpoint. External rotation was to 80 degrees passively and 60 degrees actively without pain. Internal rotation was to 70 degrees active and passively without pain. Neer impingement sign was positive. There was evidence of positive external rotation lag signs, and sensation was preserved to light touch in terminal distribution of the auxiliary nerve. Motor testing showed 4/5 in the supraspinatus, 4/5 in the infraspinatus/teres minor, 4-/5 in the trapezius, and 4/5 in the deltoid bilaterally. The Veteran performed three repetitions of maximum active right shoulder flexion, abduction, external rotation, and internal rotation. He complained of pain during the first repetition as described. Pain did not intensify with additional repetition. Range of motion was unchanged, and weakness, lack of endurance, and incoordination were not factors. The diagnosis was shell fragment wound of the right shoulder. The examiner noted that it would be difficult to attribute the above to the shell fragment wounds. At least a portion of the Veteran's muscle weakness as described in the physical examination is due to age/deconditions. However, the examiner found it is reasonable to attribute weakness of the right trapezial muscle, at least in part, to the shell fragment wound. The trapezius is innervated by the spinal accessory nerve, and accordingly trapezial weakness cannot be attributed to the cervical radiculopathy. The muscle groups involved include Group I with the trapezius and group III to include the deltoid. There was no bone/joint/tendon involvement related to the shell fragment wound. There was no neurovascular injury which can be attributed to the shell fragment wound. There was no muscle herniation. There was some soft tissue loss over the posterior shoulder related to the injury; however, the examiner found it cannot be determined if there is actually muscle loss. An August 2011 addendum indicated the claims file was reviewed by the examiner. During a January 2013 VA examination, the Veteran reported flare ups with reduced range of motion. The examiner noted that these flare-ups resulted in limitation of right shoulder motion with repetitive use as described in the shoulder examination. Specifically, the examination report notes that the Veteran's description of right shoulder flares indicates that during a flare his further limitation of motion is equal to that noted during repetitive efforts. The soft tissue loss noted represents an approximate 30 percent loss of the right trapezius and 10 percent loss of the right supraspinatus. Upon physical examination, the examiner noted flexion to 80 degrees with pain at 40 degrees and abduction to 70 degrees with pain at 40 degrees. Upon repetitive testing, flexion and abduction were to 50 degrees. Additional function loss and limitation included less movement than normal, weakened movement, pain on movement, and atrophy of disuse. The Veteran complained of pain on palpation of the right shoulder. Muscle strength was noted at 2/5. There was no ankylosis of the joint. The examiner found the Veteran does not have any pertinent physical findings, complications, conditions, signs and/or symptoms related to the diagnoses of rotator cuff injury, laceration of the supraspinatus, rotator cuff degeneration, and AC joint degenerative joint disease. Hawkin's impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis tests were all positive. The examiner noted mild degenerative joint disease of the right shoulder. The Veteran's right shoulder condition was noted not to impact his ability to work and the examiner noted that the Veteran is retired. A January 2013 VA muscle injury examination noted injury to a muscle group including Muscle Group I, Group III, and Group IV of the right shoulder. The examiner noted some loss of muscle substance to include 30 percent of the right trapezius muscle. The Veteran complained of loss of power, weakness, lowered threshold of fatigue, fatigue-pain in muscle groups I, III, and IV as consistent or at a more severe level. He denied impairment of coordination or uncertainty of movement. Upon examination, shoulder abduction (Group III) was noted as 2/5. In a June 2013 addendum, the examiner stated that he Veteran's claims file was reviewed. The wounds to muscle groups I and III were superficial and do not cause functional impairment even with repetitive use and/or with flare. Increased Ratings for Muscle Disabilities The Board notes that the Veteran was granted service connection in an April 1951rating decision for gunshot wound to the right shoulder, muscle groups IV and V, and assigned a 40 percent disability. In a January 1961 decision, the RO reduced the Veteran's disability rating to 20 percent and recategorized the disability as impairment only to Muscle Group IV. In an April 1961 decision, the Board increased the Veteran's disability rating to 30 percent. The Veteran is seeking an increased rating. The Board notes that gunshot wounds often result in impairment of muscle, bone, and/or nerve. Through and through wounds and other wounds of the deeper structures almost invariably destroy parts of muscle groups. See 38 C.F.R. § 4.47. Muscle Group (MG) damage is categorized as slight, moderate, moderately severe and/or severe and evaluated accordingly under 38 C.F.R. § 4.56. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (diagnostic codes 5301 through 5306); 3 muscle groups for the forearm and hand (diagnostic codes 5307 through 5309); 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318); and 5 muscle groups for the torso and neck (diagnostic codes 5319 through 5323). 38 C.F.R. § 4.55(b) (2012). The Board notes that the combined evaluation of Muscle Groups acting on a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of Muscle Groups I and II acting upon the shoulder. 38 C.F.R. § 4.55(d). For compensable Muscle Group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured Muscle Group will be increased by one level and used as the combined evaluation for the affected Muscle Groups. 38 C.F.R. § 4.55(e). For Muscle Group injuries in different anatomical regions which do not act upon ankylosed joints, each Muscle Group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25 (2012). 38 C.F.R. § 4.55(f). Evaluation of residuals of gunshot wound injuries includes consideration of resulting impairment to the muscles, bones, joints and/or nerves, as well as the deeper structures and residual symptomatic scarring. 38 C.F.R. §§ 4.44, 4.45, 4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54 (2012). In considering the residuals of such injuries, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41 (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. 38 C.F.R. § 4.56(c) (2012). The criteria of 38 C.F.R. § 4.56 are guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. See Robertson v. Brown, 5 Vet. App. 70 (1993), Tropf v. Nicholson, 20 Vet. App. 317 (2006). Under 38 C.F.R. § 4.56, characteristics of a slight disability of affected muscles include a simple wound of muscle without debridement or infection, service department record of superficial wound with brief treatment and return to duty; with healing with good functional results. Objective findings include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus; no impairment of function or metallic fragments retained in muscle tissue. 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, and 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. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of the muscles anticipates a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of the soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound in service. A record of cardinal symptoms, such as loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement, and evidence of unemployability because of inability to keep up work requirements should be considered. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to a sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(c) (2012). A severe muscle disability results from a through-and-through or deep-penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, with intermuscular binding and cicatrization and service treatment records or other evidence showing hospitalization for a prolonged period for treatment of the wound. Objective findings may include a ragged, depressed and inherent scars indicating wide damage to muscle groups in missile track, palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area and abnormal swelling and hardening of muscles in contraction. Tests of strength, endurance, or coordinated movements compared with corresponding muscle of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56(d) (2012). The Veteran's right shoulder injury has been rated under 38 C.F.R. § 4.73, Diagnostic Code 5304. The function of Muscle Group IV includes stabilization of the shoulder against injury in strong movements, holding the head of the humerus in the socket, abduction, and outward rotation, and inward rotation of the arm. These muscles include the intrinsic muscles of the shoulder girdle: (1) supraspinatus, (2) infraspinatus and teres minor, (3) subscapularis, and (4) coracobrachialis. In the case at hand, the Veteran is right-handed; thus, the Board will apply the rating criteria for the dominant extremity. Diagnostic Code 5304 addresses Muscle Group I disability and assigns a zero percent rating for slight disability of the dominant extremity. A 10 percent rating is assigned for moderate disability, a 20 percent rating is warranted for moderately severe disability, and a 30 percent rating is appropriate for severe disability. Muscle Group I is involved in upward rotation of the scapula and elevation of the arm above shoulder level. The extrinsic muscles of the shoulder girdle include the (1) trapezius, (2) levator scapulae, and (3) serratus magnus. The rating criteria of Diagnostic Code 5301 differ depending on whether the dominant (major) or nondominant (minor) extremity is being evaluated. Diagnostic Code 5301 addresses Muscle Group I disability and assigns a zero percent rating for slight disability of the dominant extremity. A 10 percent rating is assigned for moderate disability, a 30 percent rating is warranted for moderately severe disability, and a 40 percent rating is appropriate for severe disability. The functions of Muscle Group III are elevation and abduction of arm to level of shoulder; and the pectoralis major I (clavicular) and deltoid acting with Group II in forward and backward swing of the arm. The muscles involved include the pectoralis major I (clavicular) and deltoid. Concerning injury to the dominant arm, a slight injury warrants a noncompensable (zero percent) rating. A moderate injury is rated as 20 percent disabling. A moderately severe injury is rated as 30 percent disabling. A severe injury is evaluated as 40 percent disabling. 38 C.F.R. § 4.73, Diagnostic Code 5303. A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a) (2012). Muscle Group IV Initially, the Board notes that the Veteran currently has a 30 percent disability rating for Muscle Group IV. Under Diagnostic Code 5304 for Group IV, a 30 percent is the highest disability rating for a severe muscle impairment of the dominant arm. Therefore, no higher disability rating is warranted under this Diagnostic Code. Thus, a rating in excess of 30 percent for injury under Diagnostic Code 5304 is not warranted. Muscle Group I The Board notes that there is objective evidence of moderate to moderately severe injury to Muscle Group I, specifically the trapezius, which controls elevation of the arm above the shoulder level due to the shell fragment wound. As such, a separate disability rating for Group I under Diagnostic Code 5301 is warranted. A separate 10 percent disability rating for Muscle Group I is warranted prior to January 20, 2013, as, during that time, the Veteran's Group I muscle injury was manifested by no more than a moderate disability. During the July 2011 VA examination, motor testing showed 4-/5 in the trapezius and the examiner noted that it is reasonable to attribute weakness of the right trapezial muscle, at least in part, to the shell fragment wound. Additionally, the examiner found that there was some soft tissue loss over the posterior shoulder related to the injury; however, the examiner found it cannot be determined if there is actual muscle loss. Though there are some symptoms of Group I dysfunction to include complaints of weakness prior to January 20, 2013, there has been no objective evidence that the Veteran's Group I disability consisted of a moderately severe disability to include objective findings including indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to a sound side. However, the Board finds that starting January 20, 2013, the Veteran's Group I muscle injury was manifested by a moderately severe disability warranting a 30 percent disability rating, but no higher. During a January 2013 VA examination, the examiner noted that the soft tissue loss noted upon examination represents an approximate 30 percent loss of the right trapezius. Muscle strength on examination was noted at 2/5. Though there are some objective evidence of muscle loss of Group I starting January 20, 2013, there has been no objective evidence that the Veteran's Group I disability consisted of a severe disability to include soft flabby muscles in wound area and abnormal swelling and hardening of muscles in contraction or tests of strength, endurance, or coordinated movements indicating a severe impairment of function. Accordingly, a higher rating is not warranted. Muscle Group III The Board considered whether the Veteran's Group III muscle injury warranted a separate compensable disability rating. The Board notes that there is objective evidence of injury to Muscle Group III, specifically the deltoid, which controls elevation of the arm to the shoulder level due to the shell fragment wound. However, a compensable disability rating is not warranted as the Veteran's Group III muscle injury is manifested by no more than a slight disability. A January 2013 VA muscle injury examination noted injury to a muscle group including Group I, Group III, and Group IV of the right shoulder. Upon examination, motor testing on shoulder abduction (Group III) was noted as 2/5. Though there is objective evidence of weakness of Group III dysfunction during the claims period, there has been no objective evidence that the Veteran's Group III disability consisted of a moderate disability rating to include 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. As noted previously, the combined evaluation of Muscle Groups acting on a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of Muscle Groups I and II acting upon the shoulder. See 38 C.F.R. § 4.55(d). The maximum rating available for unfavorable ankylosis for the shoulder is 50 percent. See 38 C.F.R. § 4.71(a), Diagnostic Code 5200. With the Veteran's new ratings to include 30 percent for Muscle Group IV and 30 percent for Muscle Group I (for a combined 50 percent disability rating), after January 20, 2013, the Veteran is at the maximum disability rating available for muscle injuries to the right shoulder. The Board also finds there is no basis for additional staged ratings prior to January 30, 2013. Neither the lay nor the medical evidence reflects that the Veteran's muscle disabilities met the criteria for higher disability ratings at any time prior to January 30, 2013. As such, the Board finds that the assigned disability ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Increased Rating for Scars VA received the Veteran's claim for VA compensation in May 2006. In a November 2006 rating decision, the RO continued the Veteran's noncompensable rating for SFW scar of the chest under Diagnostic Code 7805 (2006). In a July 2012 decision, the RO increased the Veteran's disability rating to 10 percent prior to July 26, 2011, and 20 percent thereafter under Diagnostic Code 7804 (2012). During the pendency of this claim, the criteria for evaluating disabilities of the skin under 38 C.F.R. § 4.118 (Schedule of Ratings-Skin) were revised. The revised criteria are applicable to claims filed on or after October 23, 2008. They do not apply to the Veteran's claim because it was received in August 2008 prior to effective date of the schedular changes and he has not requested application of the new criteria to his claim. Prior to October 23, 2008, the schedular criteria provided as follows: Scars other than on the face, head or neck were rated under Diagnostic Codes 7801 through 7805, based on size and based on whether such scars were deep versus superficial, stable versus unstable, or painful on examination. Notes to the Diagnostic Codes state that a 'deep' scar is one associated with underlying soft tissue damage; a 'superficial' scar is one not associated with underlying soft tissue damage; and an 'unstable' scar is one where for any reason there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7801 (scars other than head, face or neck that are deep or cause limited motion), a 10 percent rating is assigned for scars having an area or areas exceeding 6 square inches (39 sq. cm.); a 20 percent rating is assigned for qualifying scars having an area or areas exceeding 12 square inches (77 sq. cm.); a 30 percent rating is assigned for qualifying scars having an area or areas exceeding 72 square inches (465 sq. cm.); and 40 percent rating is assigned for qualifying scars having an area or areas exceeding 144 square inches (929 sq. cm.). Under Diagnostic Code 7802 (scars other than on the head, face or neck that are superficial and that do not cause limited motion), a 10 percent rating is assigned for qualifying scar(s) having an area or areas of 144 square inches (929 sq. cm.) or more. Note (1) to Diagnostic Code 7802 states that qualifying scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Under Diagnostic Code 7803 (scars that are superficial but unstable), a 10 percent rating is assigned for qualifying scars. Under Diagnostic Code 7804 (superficial scars painful on examination), a 10 percent rating is assigned for qualifying scars. Note (2) to Diagnostic Code 7804 states a 10-percent evaluation is for application for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. Under Diagnostic Code 7805 (other scars) provides for rating the scars based on limitation of function of the affected part. Analysis During an August 2006 VA scars examination, the examiner noted that the Veteran has an 11 cm white atrophic linear scar with faint white perpendicular scars crossing the main scar, with some tissue loss at the superior part of the scar. The right posterior shoulder also had 4 additional scars: 2.5 cm linear white scar with 1cm lateral and parallel to 11 cm scar, a 2.4 cm linear white scar with 4cm lateral and parallel to 11 cm scar, a 4 cm linear white scar perpendicular to superior third of 11 cm scar, and a 3 cm by 2 cm slightly raised irregularly shaped scar. The scars showed no tissue loss, induration, elevation, skin breakdown, or tenderness. During a July 2011 VA scars examination, the Veteran complained of numbness in the area of the scar and down the arm. He also complained of pain in the scar spontaneously and with pressure on the site which radiates into neck area. The examiner noted limitation of daily routines or employment from scars. He has pain in the area of the scar limits activity which requires the use of the right arm. He awakes at night if lying on the right side. Upon examination, the examiner noted a scar on the right top shoulder extending from the acromion posteriorly and inferiorly with a curvilinear, hypopigmented scar about 12 cm by 0.6 cm. The scar is superficial with a normal texture, without atrophy or scaling. There was no irregularity in the features. A second scar was noted as a depressed area with tissue loss in the center of the scar measuring 4 cm by 3 cm (12 sq cm). The scar is deep with normal texture, without atrophy or scaling. A third scar was noted as underlying the second scar and overlying the depressed area containing a dense cluster of linear scars interconnected over a 4.5 cm by 3 cm area (13 sq cm). The scar is hypopigmented throughout and deep with a normal texture. A fourth scar was noted at the right chest, 1 cm by 0.2 cm. It was hypopigmented throughout, and superficial with normal texture. All scars were tender to touch. There was no adherence to deeper structures. There was stable integrity with no ulceration or breakdown. The scar was not elevated or depressed and there was no underlying tissues loss, no restriction on movement, no inflammation or edema, no keloid formation, and no limitation of motion or inflexibility. An August 2011 addendum indicated the claims file was reviewed. During a January 2013 VA examination, the Veteran had a scar related to the right shoulder disorder, however the scars were not painful and/or unstable, and the total area of all the related scars was not greater than 39 square centimeters. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of disability rating in excess of 10 percent prior to July 26, 2011, and in excess of 20 percent thereafter. Initially, the Board notes that a 10 percent disability rating is the maximum rating allowed under Diagnostic Code 7805 prior to October 23, 2008. Though the Veteran has a disability rating of 20 percent after July 26, 2011, the Board will not disturb this determination. The Board notes that at no time has an increased evaluation has been warranted under any other potentially applicable provision as the evidence of record does not show scars that are deep, cause limitation of motion, are in excess of 12 square inches (77 sq. cm.), are associated with underlying soft tissue damage, or are unstable upon examination. Thus, a compensable rating under Diagnostic Codes 7801-7805 for scars must be denied. 38 C.F.R. § 4.118, Diagnostic Code 7801-7805 (2007). Furthermore, there is no basis for additional staged ratings. Neither the lay nor the medical evidence reflects that the disability met the criteria for a disability rating in excess 10 percent throughout the appeal period. As such, the Board finds that a uniform disability rating is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Extraschedular Considerations The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected muscle and scar disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's muscle disabilities and scars with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran reports muscle loss and weakness, and painful scars. The Board finds the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a disability rating in excess of 30 percent for residuals of a shell fragment wound (SFW) of the right shoulder is denied. Entitlement to a separate 30 percent disability rating for impairment of Muscle Group I starting January 20, 2013 is granted. Entitlement to a disability rating in excess of 10 percent for scars on the right chest prior to July 26, 2011, and entitlement to a disability rating in excess of 20 percent for scars on the right chest thereafter is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs