Citation Nr: 1324366	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  10-01 620	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to greater than a 20 percent rating for residuals of a shell fragment wound injury of the left shoulder with a retained foreign body, beginning November 19, 2009.

2.  Entitlement to a total disability rating for compensation on the basis of individual unemployability.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel


INTRODUCTION

The Veteran served on active duty from January 967 to June 1969, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal and the Combat Action Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  

The Veteran testified at an August 2011 hearing by the undersigned held sitting at the RO.

In its September 2012 remand, the Board directed that the RO obtain outstanding VA treatment records dated August 2009 to the present, and schedule the Veteran for a VA examination to determine the nature and severity of each category of shell fragment wound residual (muscle, skin, joint, etc.).  The records were associated with the claims file in electronic form in October 2012 and the VA examination was conducted in November 2012.  Accordingly, the Board finds that there has been substantial compliance with the directives of the September 2012 Remand in this case, and an additional remand is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU) is addressed in the REMAND portion of the decision below and is REMANDED to the RO for the appropriate development.



FINDING OF FACT

The preponderance of the evidence shows that the severity of the Veteran's left shoulder shell fragment wound residuals does not rise to the level of a moderately severe muscle injury.

CONCLUSION OF LAW

The criteria for greater than a 20 percent rating for left shoulder shell fragment wound residuals have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.14, 4.56, Diagnostic Code 5301 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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, 3.326 (2012).  A September 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The November 2012 VA examination was adequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The VA examiner documented the Veteran's subjective reports of his symptomatology, completed a physical examination, recorded the results of clinical testing, and included medical nexus opinions as appropriate.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  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.  Here, during the Board hearing the VLJ noted the elements of the claim that were lacking to substantiate the claim of service connection.  The Veteran was assisted at the hearing by an accredited representative who with the VLJ asked questions to ascertain his current level of disability.  The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2).

Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).  

Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board's September 2012 decision granted a 20 percent rating prior to November 19, 2009, and assigned a separate rating for the shell fragment wound residual scar, but remanded the issue of whether a higher rating was warranted beginning that date.  While the Veteran's appeal was in remand status, in a February 2013 rating decision the RO assigned a 30 percent rating for impairment of the humerus; a 20 percent rating for limitation of motion of the left shoulder; and a 20 percent rating for left upper extremity radiculopathy.  The record does not reflect that the Veteran has challenged any of these ratings.  Accordingly, the scope of the Board's decision will be limited to whether a higher rating is warranted under the relevant muscle injuries Diagnostic Code.

Muscle injuries are evaluated in accordance with 38 C.F.R. § 4.56.  The pertinent provisions of 38 C.F.R. § 4.56 hold that (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; and (c) 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.

The Veteran's left shoulder shell fragment wound residuals is rated as 20 percent disabling under the provisions of 38 C.F.R. § 4.56, Diagnostic Code 5301.  Diagnostic Code 5301 contemplates an injury to Muscle Group I, which involves injuries to the (1) trapezius, (2) levator scapulae, and (3) serratus magnus; these muscles, the extrinsic muscles of the shoulder girdle, perform upward rotation of the scapula and elevation of the arm above shoulder level.  It assigns 30 percent and 40 percent ratings for moderately severe and severe disabilities, respectively, manifested by impaired function of the dominant upper extremity; the Veteran being left-handed, making his left upper extremity his dominant extremity, is reflected in the service treatment records and was confirmed by the November 2009 VA examiner.  

Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as moderately severe or severe as follows:

(3) Moderately severe disability of muscles - 

      (i) Type of Injury.  Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. 

      (ii) History and Complaint.  Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound.  Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. 

      (iii) Objective Findings.  Entrance and (if present) exit scars indicating track of missile through one or more muscle groups.  Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side.  Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 




(4) Severe disability of muscles - 

      (i) Type of Injury.  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, intramuscular binding and scarring. 

      (ii) History and Complaint.  Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound.  Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. 

      (iii) Objective Findings.  Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track.  Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area.  Muscles swell and harden abnormally in contraction.  Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 

If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of the missile; (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56. 

Review of the evidence of record does not establish entitlement to greater than a 20 percent rating beginning November 19, 2009.  The November 2012 VA examination report notes the presence of a scar, but does not reflect that it was ragged, depressed, or adherent; a February 2010 VA physical therapy record noted that the scar was well-healed.  Similarly, both the February 2010 record noted above, plus March 2010 and October 2012 records, as well as the November 2012 VA examination report note that the muscle strength was 4/5, which does not suggest that the muscles have atrophied, are otherwise manifested by loss of deep fascia or muscle substance, or otherwise constitute moderately severe or severe impairment of the muscle.  An October 2011 VA record noted that there was no atrophy of the left shoulder, arm, or hand muscles; the November 2011 examination noted that the left triceps, deltoid, biceps, and infraspinatus were only mildly or slightly weak.  Further, the November 2011 and May 2012 electromyelograms (EMGs) showed that all muscles were active or normal; the impression from the November 2012 EMG showed sensory polyneuropathy and left median neuropathy that was only mild in severity.

To the extent that the report indicates that the Veteran's muscle weakness results in limited motion, as documented frequently through the appeal period in VA outpatient treatment records as well as at the November 2012 VA examination, the Board reiterates that the Veteran has not challenged the February 2013 rating decision's assignment of a rating on this basis under Diagnostic Code 5201.  38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012).  To simultaneously assign a higher rating based on impairment of the muscle resulting in limited motion of the left shoulder would constitute pyramiding.  38 C.F.R. § 4.14 (2012).  As such, the preponderance of the evidence is against entitlement to a higher rating.


ORDER

A separate rating in excess of 20 percent for residuals of a shell fragment wound injury of the left shoulder with a retained foreign body, beginning November 19, 2009, is denied.

REMAND

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances.  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

A total disability rating based on individual unemployability is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability.  Rice.  During the course of the appeal adjudicated above, the Veteran reported at a December 2012 VA neurology consult visit that the pain of his left shoulder symptomatology was so bad that during his work with an excavator, he often needed to stop working secondary to pain.  In an October 2012 statement, the Veteran asserted that doctor warned him that his service-connected left shoulder gunshot wound injury residuals would become worse if he were to return to work, and thus, that he is precluded from gainful employment.  In his October 2012 VA Form 21-8940, he asserted that he is disabled from gainful employment due both to his left shoulder gunshot wound residuals and his posttraumatic stress disorder (PTSD).  Finally, a November 2012 neurology consult, he reported having missed work due to his left shoulder gunshot wound residuals, and the VA examiner found that the Veteran's disability picture interfered with his employability.  As a claim for TDIU has been raised, the Board finds that a VA examination is required.

Accordingly, the issue of entitlement to TDIU is REMANDED for the following actions:

1.  Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. §3.159(b) (2012) that includes an explanation as to the information or evidence needed to establish entitlement to TDIU.

2.  After physically or electronically associating any pertinent, outstanding records, forward the Veteran's claims file to a VA examiner, if possible, a vocational specialist, who must opine as to it is at least as likely as not that the Veteran is unable to obtain or retain substantially gainful employment due solely to one or more of his service-connected disabilities, to include the combined impact of his service-connected disability, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities.  The examiner should fully explain any opinion(s) offered. 

The examiner should comment as to the additional limitations placed on the Veteran's employability, to include any limits that exist as a result of his physical disabilities co-existing with his psychiatric disabilities; if the examiner finds that the Veteran is capable of moderate-duty or light-duty employment, he or she should comment as to whether the additional impairment resulting from his psychiatric disability still allows for substantially gainful employment. 

The examiner is reminded that marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a).

3.  After undertaking the development above, adjudicate the Veteran's TDIU claim.  If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond.  Then, return the appeal to the Board.

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  All claims 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).


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs