Citation Nr: 1324488	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  09-35 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio


THE ISSUE

1.  Entitlement to service connection for residuals of a traumatic brain injury (TBI), other than headaches.

2.  Entitlement to an increased rating for service-connected residuals of a shell fragment wound of the left scapula with retained foreign body, currently evaluated as 10 percent disabling. 

3.  Entitlement to an increased (compensable) rating for service-connected residuals of a shell fragment wound of the left scalp without retained foreign bodies.

4.  Entitlement to a total disability rating based on individual employability (TDIU).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to June 1969.

This case comes to the Board of Veterans' Appeals (Board) on appeal from February 2008 and September 2009 rating decisions by the RO in Cleveland, Ohio.

In January 2011, the Veteran testified at a video hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is of record. 

In March 2011, the Board remanded this case to the RO via the Appeals Management Center (AMC) for additional development.  The case was subsequently returned to the Board.

In a May 2012 rating decision, the AMC granted service connection and a 30 percent rating for headaches, claimed as due to TBI.  Hence, the remaining issue on appeal with respect to TBI is as characterized on the first page of this decision.  Moreover, since the Veteran did not appeal the rating or effective date assigned for the headache disability, this claim is no longer in dispute.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection).  

As noted in the prior remand, the Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected disabilities (currently posttraumatic stress disorder (PTSD), headaches, hearing loss, tinnitus, a scar of the left scapula, and a scar of the left scalp), and that there is a derivative claim for a TDIU.  See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).  The issue of entitlement to a TDIU is part and parcel of the appeals for increased ratings.  Rice, supra.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Service connection has already been established for headaches, claimed as due to TBI.

2.  There is no probative (meaning competent and credible) evidence of record confirming the Veteran has any other current disability related to TBI, or that he has had this alleged condition at any point since filing this claim.  His claimed disability of tremors has not been attributed to TBI.

3.  The Veteran's service-connected residuals of a shell fragment wound of the left scalp is manifested by a faint scar above the left ear that is hidden under the hair measuring no more than 3 centimeters by 2 centimeters, and is non-adherent, involves only one characteristic of disfigurement, there is no gross distortion or asymmetry of his facial features and pigmentation is closely aligned to the surrounding tissues.  The scar is not painful or tender on palpation, is not unstable, there is no underlying soft tissue damage, nor does it limit function in any way. 

4.  The preponderance of the evidence shows that the Veteran's complaints of pain in his left shoulder joint have been attributed to non-service-connected disabilities.

5.  The Veteran's residuals of a shell fragment wound of the left scapula is manifested in part by a painful and tender superficial residual scar that measures 2.3 centimeters, but it does not cause any associated limitation of function or motion of any nearby joint.  There is no depression or fixation of the scar, no adherence of the scar to underlying tissue, it is not unstable, and there is no functional impairment. 

6.  The history of the shell fragment wound to the Veteran's left upper back/scapula area reflects a moderate muscle injury to the left infraspinatus, involving Muscle Group IV of the non-dominant arm, and does not show a through-and-through or deep penetrating wound, prolonged infection or hospitalization, or evidence of unemployability because of an inability to keep up with work requirements.  


CONCLUSIONS OF LAW

1.  Other than headaches, a disability related to TBI was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The criteria for an increased 10 percent rating (but no higher) for residuals of a shell fragment wound of the left scalp with scar, are met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7805 (2012). 

3.  The criteria are not met for a rating higher than 10 percent for the residual scar of the shell fragment wound of the left scapula.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801-05 (2008); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2012).

4.  The criteria are met for a separate 10 percent rating (but no higher) for the residuals of a shell fragment wound of the left scapula and infraspinatus, involving MG IV.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.55, 4.56, 4.73, Diagnostic Code 5304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486. 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, an April 2007 notice letter was sent to the Veteran prior to the February 2008 rating decision on appeal, and an August 2009 letter was sent to him prior to the September 2009 rating decision, i.e., in the preferred sequence.  These letters informed him of the type of information and evidence required to substantiate these claims for service connection and for increased ratings, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence.  He was also advised to provide evidence showing that his service-connected residuals of shell fragment wounds had worsened, so as to in turn entitle him to increased ratings for these disabilities.  He was advised of the downstream disability rating and effective date elements of these claims in these letters.  See Dingess/Hartman, supra.  Additional notice was provided in an August 2008 letter as to the increased rating claims, which advised him of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disabilities have on his employment.  The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").  The appeals were most recently readjudicated in a June 2012 supplemental statement of the case. 

As the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in timing or content and that the error is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  There is no such pleading or allegation in this instance.

VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  To this end, the RO and AMC have obtained his service treatment records (STRs), private medical records, and VA outpatient treatment records, and arranged for VA compensation examinations in April 2007, August 2009, April 2011, and May 2011.  

With respect to the appeals for increased ratings for residuals of shell fragment wounds of the left scalp and scapula, only if the record is inadequate or there is a suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination.  38 C.F.R. § 3.327(a) (2012).  Here, the most recent VA compensation examinations for these conditions were conducted in April 2011.  The mere passage of time since does not, in and of itself, necessitate another examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate his residuals of shell fragment wounds of the left scalp and scapula.  38 C.F.R. §§ 3.327(a), 4.2.

The Board finds that the examination reports were sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. The examinations were conducted by competent medical professionals.  In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms.  Further, the VA examination reports addressed the applicable rating criteria.  In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected disabilities to provide probative medical evidence for rating purposes.  The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide these claims.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).

As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991).  The Board concludes that the appellant was afforded adequate examinations. 

The Board further finds that the RO has substantially complied with its March 2011 remand orders.  In this regard, the Board directed that additional treatment records be obtained and that VA examinations be conducted.  Additional VA treatment records have been associated with the claims file, and additional VA examinations have been conducted.  Therefore, the Board finds that no further development is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board concludes that all the available records and medical evidence have been obtained in order to make a determination as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or 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.  The Board finds that this was done at the January 2011 Board hearing.  Moreover, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the January 2011 Board hearing. 



Analysis

The Board has reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Service Connection for Residuals of TBI

A review of the Veteran's  service treatment records shows that he sustained shell fragment wounds to the left scalp and left scapula in April 1968, during combat in Vietnam.  

The Veteran claims that he sustained a TBI in the same explosion in which he was wounded, and that his TBI residuals are headaches and tremors.  The Veteran has testified that, while he sustained a pre-service injury to his head in a motor vehicle accident, he did not have any problems by the time he entered active duty.  

As noted above, the AMC has already granted service connection for headaches, (claimed as due to TBI).  Service connection has also been established for hearing loss and tinnitus.  Hence, the remaining issue on appeal is entitlement to service connection for residuals of TBI, other than headaches.

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

Service connection may only be awarded to an applicant who has disability existing on the date of application, not for past disability.  Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); but see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

To establish entitlement to service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain diseases like organic diseases of the nervous system are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Other organic diseases of the nervous system are such a chronic condition under 38 C.F.R. § 3.309(a).  

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  

For purposes of establishing service connection under 38 U.S.C.A. § 1110, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b). 

If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service.  Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003).  To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). 

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.")  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). 

If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. And in that case, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA to establish aggravation.  Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417   (Fed. Cir. 1994).

A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994). 
See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "it is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Turning now to the facts of this particular case.  The Veteran's service treatment records reflect that in a pre-induction September 1966 report of medical history, he reported a history of head injury, and said he was treated for a fractured skull received in an October 1965 automobile accident.  The examiner noted that the Veteran had a skull fracture in 1965 with no sequelae.  On pre-induction medical examination in September 1966, the Veteran's head and neurologic system were clinically normal.  In April 1968, he was treated for a lacerated wound of the left scalp, due to fragments, with no artery or nerve involvement, and a penetrating wound of the left scapula, due to fragments, with no artery or nerve involvement.  He was hospitalized for five days, and his lacerations were sutured.

An April 1968 telegram sent to the Veteran's wife reflects that the Veteran was slightly wounded in Vietnam on April 18, 1968, and received a laceration to the left scalp and back.  It was noted that he was not seriously wounded.

In an April 1969 report of medical history, the Veteran gave a history of head injury, and frequent or severe headaches.  He denied a history of neuritis, and denied nervous trouble of any sort.  He also stated that he fractured his skull in 1965.  The reviewing examiner indicated that the Veteran fractured his skull in an automobile accident, and that he was wounded in the head in Vietnam, with no sequelae.  The Veteran reportedly had occasional headaches.  On separation  medical examination in April 1969, the Veteran's head and neurologic system were clinically normal.

In June 1969, the Veteran filed his original claim for service connection, and he did not claim service connection for TBI or tremors.

On VA examination in September 1969, the examiner noted that the Veteran was wounded in action in 1968, with a minor shell fragment wound of the left scapular region, and a mild shell fragment wound to the scalp.  There were no bones broken, and no loss of consciousness.  On examination, there was a one-inch oval scar of the upper medial "scalp" [presumably he meant scapula], well healed and non-tender, with full range of motion.  The examiner also stated that the scalp showed no scars.  On general medical examination, the head and nervous system were normal.

There are no subsequent medical records which are pertinent until 2000.  Private medical records dated in 2000 are negative for complaints or treatment of TBI residuals.

VA and private medical records dated since 2004 reflect treatment for a variety of conditions.  In June 2004, he reported occasional migraine headaches and said he had a brother with Parkinson's disease.  On central nervous system examination, the cranial nerves II through XII were intact.  Motor strength was 5/5 throughout the body, there were no sensory deficits, and deep tendon reflexes were normal throughout.  Gait was normal.  There was no complaint or diagnosis related to a TBI or tremors.

In June 2004, the Veteran filed his second claim for service connection, and he did not claim service connection for TBI or tremors.  In a May 2004 statement, he proffered complaints regarding his upper back shell fragment wound, and hearing loss due to noise exposure in service.  He did not report any complaints regarding headaches or tremors.

On VA examination performed to evaluate the Veteran's residuals of shell fragment wounds in February 2005, the examiner found no scars on his head, and there was no palpable tenderness or evidence of a retained foreign body of the scalp.  There were no complaints or diagnosis of TBI.

In his January 2007 claim, the Veteran reported that he had shrapnel in the left side of his head and back, which was accompanied by constant pain and throbbing, and aching sensations.  

On VA scar examination in April 2007, the Veteran had complaints regarding his left shoulder, but said the wound on his scalp was causing no problems.  A skull X-ray study showed no retained foreign bodies.  The pertinent diagnosis was shell fragment wound of the left scalp without retained foreign body or residuals.

In a February 2008 statement, the Veteran said he wanted to be tested for TBI, as he had headaches but had never associated them with being hit in the side of the head.  

A March 2008 VA neurology consult reflects that the Veteran complained of shaking and right leg numbness.  He reported fine shaking since he returned from Vietnam.  His shaking was episodic.  The diagnostic impression was tremors that appeared to be very fine tremor related to his underlying anxiety, episodic possible myoclonic jerk that could be secondary to hyperexcitability of the nerve or due to underlying psychogenic issues, and right peroneal palsy.  On neurological consultation in April 2008, the neurologist diagnosed right lower leg pain due to L5-S1 radiculopathy, with possible compression of the nerve, tremors that appear to be psychogenic, secondary to his underlying anxiety, and episodic myoclonic jerk that appeared to be secondary to psychogenic issues with his underlying PTSD and hyperexcitability of the nerve, and no evidence of Parkinson's.

A March 2009 VA outpatient treatment record reflects that the Veteran reported that he had a recent car accident, and hit his head hard on the left-side window, and went to the emergency room, but X-ray studies were reportedly normal.

In his October 2009 notice of disagreement, the Veteran asserted that "issues such as concussion and blunt trauma were not reported during this [the Vietnam] era."  He asserted that although he had an accident prior to service, it was not severe.  He also asserted that his shell fragment wound to the head was a penetrating wound.  He said he had suffered from headaches for many years, and that that his recent car accident in March 2009 was irrelevant as he was claiming headaches and TBI symptoms for the past 30 years.  He said that the recent accident was not severe and he had no findings of a concussion or other head trauma.

At his January 2011 Board hearing, the Veteran testified that prior to service, he had an automobile accident in which his head hit the window, but he had no symptoms from this injury upon entry into service.  He stated that during the in-service incident in which he received shell fragment wounds to the head and scapula, he was knocked over on his back, and his helmet was thrown about 10 feet away from him.  He testified that his primary TBI symptoms were headaches and tremors, and that no doctor had ever told him that those conditions were related to a TBI.  He stated that he had headaches and tremors since he came back from Vietnam.  He did not seek VA medical treatment until 2004 or 2005, and prior to that he had no treatment.  He took over-the-counter medication.  He denied having any TBIs after service. 

On VA TBI examination in April 2011, the examiner noted that the claims file was reviewed.  The Veteran reported that he was wounded with shrapnel and the shrapnel went through his head and he lost consciousness for a few minutes.  He was treated and returned to duty.  He complained of headaches which mostly occurred daily.  They came and went several times per day, and twice a month he had severe migrainous headaches which lasted for several hours.  These headaches were associated with nausea, vomiting, photophobia and phonophobia.  The Veteran reported that he had headaches ever since he got out of Vietnam in 1968.  He denied dizziness, weakness, fatigue, malaise, mobility problems, balance problems, memory impairment or other cognitive impairment, speech or swallowing problem, and no current pain other than shoulder pain.  He was ambulatory.  He denied vision problems, history of decreased sense of taste or smell, seizures, neurobehavioral symptoms, autonomic dysfunction, or endocrine dysfunction.  

On examination, strength was full in the upper and lower extremities.  Muscle tone was normal, reflexes were equal and symmetrical, sensation was normal, gait was normal, there was no autonomic dysfunction, there was no endocrine dysfunction, and cranial nerves I to XII were normal.  There was no evidence of cognitive impairment.  There was no other abnormal physical finding.  Motor activity was normal.  A computed tomography scan of the head showed no acute abnormality.  The diagnosis was history of shrapnel injury to the head in Vietnam.  The examiner's final impression was that the Veteran had a history of headaches since he was injured in Vietnam, and he opined that this was 50/50 related to his injury.  He concluded that there was a 50/50 probability that his headaches were related to his injury in Vietnam.  No other disability was diagnosed.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").

In determining whether statements submitted or made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, 
self-interest, malingering, desire for monetary gain, and witness demeanor).

Initially, the Board finds that although the Veteran consistently reported in service that he suffered a "fractured skull" two years prior to service in a motor vehicle accident, a disability related to head trauma was not noted on entry into military service on his pre-induction examination in 1966.  The presumption of soundness when entering service attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted").  See Bagby v. Derwinski, 1 Vet. App. 225, 227   (1991).  The regulations provide expressly that this term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id., at (b)(1).  See also Quirin v. Shinseki, 22 Vet. App. 390 (2009).  Hence, he is presumed to have been in sound condition in this regard upon entry into service.  

In recent statements related to this claim, the Veteran has asserted that he had a TBI in service and that he has tremors that began in service.  He is competent to say he had symptoms such as tremors during service and currently.  See 38 C.F.R. § 3.159(a)(2); Layno, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005) (A Veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent).  Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence (the most probative of it) indicates the Veteran has not experienced continuous TBI symptoms (other than headaches) since service.

The appellant has alleged that he has TBI residuals to include tremors that began during military service.  However, where lay statements are "vague" or "inconsistent with the evidence as a whole," they may be discounted by VA.  See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010). 

The post-service medical evidence does not reflect any complaints or treatment related to a TBI or tremors for nearly 40 years following the conclusion of his service, and is entirely negative for complaints of tremors until 2008.  The Veteran did not claim that he had symptoms of a TBI that began in service until filing his most recent VA disability compensation claim in 2008.  He did not claim service connection for TBI residuals in his original service connection claim in 1969, or in his 2004 claim.  Although he complained of headaches on separation examination in 1969, he did not complain of tremors.  His in-service history of symptoms and previous treatment at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). 

There is no current diagnosis of TBI residuals to include tremors, including on his TBI VA examination.  Neurologists have related his episodic tremors to psychogenic causes.  The Board therefore finds that his statements to the effect that he had continuous tremors since a head injury in service are not credible, as they are contradicted by other evidence of record, including his treatment records.  Moreover, tremors are not a listed condition under 38 C.F.R. § 3.309(a), and he does not have a diagnosis of a current organic disease of the nervous system.  See Walker, supra.

Significantly, a review of the evidence of record shows there is no medical evidence of a current disability related to a TBI, other than headaches, which are already service-connected.  As explained, VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability, and service connection is not warranted for the claimed disability for TBI residuals to include tremors as there is no current TBI disability (other than headaches), since the filing of this claim.  Degmetich, supra; McClain, supra.  Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  And a current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

For these reasons and bases, the Board finds that the weight of the lay and medical evidence is against this claim.  Additionally, the Board considers it significant that no VA examiner or other health care provider has indicated that the Veteran has residuals of TBI to include tremors, or that they are related to service.  The Board recognizes that the Veteran, himself, has asserted that he has this condition and that it is related to service, and that, in some cases, such lay evidence is competent and credible on the issues of diagnosis and etiology.  See again Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  TBI and tremors, however, are medically complex conditions that are not readily amenable to mere lay diagnosis or probative comment regarding their etiologies or origins. See Barr, 21 Vet. App. at 307.  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). 

Other than the Veteran's statements, there is no evidence showing that he has TBI residuals (other than headaches), and there is no evidence of organic diseases of the nervous system manifested to a compensable degree within the first post-service year.

The Board therefore finds that the most probative evidence is against the claim. And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the Veteran's favor, and his claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Ratings for Shell Fragment Wound Residuals of the Scalp and Scapula

The RO has rated the service-connected residual scar of a shell fragment wound of the left scapula with retained foreign body as 10 percent disabling from January 8, 2007, under Diagnostic Codes 5301-7804, and has rated the service-connected shell fragment wound of the left scalp without retained foreign bodies or residuals as noncompensable under Diagnostic Code 7800.  The Veteran contends that these disabilities are more disabling than currently evaluated.

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. (1991).  The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994).  That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Both the use of manifestations not resulting from service-connected disease or injury and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).  In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes.

As will be discussed further below, the clear preponderance of the medical evidence demonstrates that the Veteran has several non-service-connected disabilities of the left shoulder, to include acromioclavicular joint arthritis, rotator cuff tendonitis, residuals of shoulder dislocation, and cervical radiculopathy.  The Veteran is not service-connected for any left shoulder disability other than a residuals of a shell fragment wound of the left scapula, with a scar and a retained foreign body.  Symptoms from his other non-service-connected left shoulder disabilities may not be used to evaluate the service-connected residual of a shell fragment wound of the left scapula including a scar with a retained foreign body.  38 C.F.R. § 4.14.

The criteria for rating scars were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008.  The Veteran's claims were received in January 2007, prior to that date.  On January 20, 2012, but effective retroactively to October 23, 2008, 38 C.F.R. § 4.118 was again revised to clarify that as to claims filed before October 23, 2008, the old criteria will apply to applications received by VA before that date.  However, a veteran whose scars were rated by VA under a prior version of diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 C.F.R. § 4.118, may request review under these clarified criteria, irrespective of whether his disability has worsened since the last review.  The effective date of an increased rating award, however, will in no case be before October 23, 2008. 

Also, the Court has held in the past that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so.  See Karnas v. Derwinski, 1 Vet. App. 308 (1991).  The Karnas rule has, however, since been limited to some degree by a decision of the Federal Circuit as well as legal precedent of VA's General Counsel.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) and VAOPGCPREC 7-03.  The revised statutory or regulatory provisions may not be now applied to any time period before the effective date of the change, although the former provision may be applied prospectively.  See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114  (2012); VAOPGCPREC 3-2000. 

The AMC considered the Veteran's claims under the amended criteria and in a June 2012 supplemental statement of the case the Veteran was duly notified of these changes.  In order to review the record in the light most favorable to the Veteran, as the applicability of the revised criteria was recently clarified, the Board will consider the rating criteria in effect prior to and as of October 23, 2008, in adjudicating these claims. 

The Veteran's service treatment records reflect that in April 1968, he was treated for shell fragment wounds of the left scalp and left scapula.  Contemporaneous medical records reflect treatment for a lacerated wound of the left scalp, due to fragments, with no artery or nerve involvement, and a penetrating wound of the left scapula, due to fragments, with no artery or nerve involvement.  He was hospitalized for five days, and his lacerations were sutured.

On post-service VA examination in September 1969, the examiner noted that the Veteran had been wounded in action in 1968, with a minor shell fragment wound of the left scapular region, and a mild shell fragment wound to the scalp.  There were no bones broken, and no loss of consciousness.  On examination, there was a one-inch oval scar of the upper medial "scalp" [presumably the examiner meant "scapula"], that was well healed and non-tender, with full range of motion.  The examiner also stated that the scalp showed no scars.  A chest X-ray study was normal.

Private medical records dated from January to May 2004 reflect treatment for left shoulder pain.  A January 2004 note reflects that an X-ray study showed a metal fragment in the left scapular area.  The pertinent diagnosis was rotator cuff tendonitis versus tear.  A February 2004 treatment note by Dr. K. reflects that the Veteran reported that he had left shoulder pain for the past six weeks.  He noted that an X-ray study showed a small metallic artifact which was extrapleural lying along the posterior ribs.  There was also a moderately arthritic acromioclavicular joint with a small degenerative cyst in the distal clavicle and some hypertrophic spurring off of the inferior aspect of the distal clavicle.  Dr. K. indicated that the Veteran's left shoulder pain was likely related to acromioclavicular joint arthritis with the likelihood of some underlying bursitis.  He stated that he might also have some occult cervical radiculopathy.  He recommended physical therapy for cervical traction and rotator cuff strengthening.

By a written statement dated in May 2004, the Veteran said he had retained shrapnel in his left upper back, and it only recently became a problem that gave him unbearable pain.  He stated that previously he suffered through the painful bouts, but was now unable to do so.  

VA medical records dated since 2004 reflect treatment for a variety of conditions, including left shoulder pain.  A June 2004 VA outpatient treatment record reflects that the Veteran reported that he had intermittent left shoulder pain for the past six months.  On examination, left shoulder range of motion was normal, and there was no local tenderness or inflammation.  The examiner noted that an X-ray study showed a small shrapnel piece at the back of the shoulder.

A June 2004 X-ray study of the left shoulder showed no acute fracture or dislocation, but there was Hillsach's deformity of the left humeral head, compatible with prior dislocation, osteoarthritic changes of the acromioclavicular joint, and old granulomatous disease.

On VA examination performed to evaluate the Veteran's residuals of shell fragment wounds in February 2005, the Veteran complained of constant left shoulder pain.  On examination, there were no shoulder scars.  There was some tenderness over the posterior superior medial aspect of the scapular area to palpation.  The examiner found no scars on his head, and there was no palpable tenderness or evidence of a retained foreign body of the scalp.  The diagnostic impression was shrapnel wounds of the left scalp, with no residuals, and shrapnel wound to the left shoulder, with retained 5 by 8 millimeter foreign body in the soft tissue, left acromioclavicular joint arthritis, and resolving cervical radiculopathy.  The examiner opined that the Veteran's scars were not visible and were causing no significant symptoms currently.  The retained shrapnel was also not causing any of his symptoms, which were more likely the result of left acromioclavicular joint arthritis and resolving cervical radiculopathy, which was unrelated to his shrapnel wounds that occurred on April 18, 1968.

By a letter dated in May 2005, the Veteran's private physician, Dr. L., stated that a January 2004 X-ray study showed a metallic foreign body in the posterior chest wall, and this was consistent with where he had recurrent pain in the left upper back area.  As such, it was his medical opinion that the shrapnel was responsible for the recurrent pain.

In his January 2007 claim, the Veteran reported that he had shrapnel in the left side of his head and back, which was accompanied by constant pain and throbbing, and aching sensations.  

VA X-ray studies of the chest and left shoulder dated in April 2007 showed a single 7-millimeter metallic foreign body outside of the chest and adjacent to the scapular blade, no fractures or dislocations of the left shoulder, and mild degenerative changes of the acromioclavicular joint.  A skull X-ray study was negative.

On VA scar examination in April 2007, the Veteran complained of left shoulder pain and reduced mobility, and said the wound on his scalp was causing no problems.  On examination, there was a 2.3-centimeter scar over the left scapula which was tender to palpation and hypersensitive to light touch.  There was no depression or fixation of the scar.  No inflammation was noted and no palpable foreign body was felt.  There was a 2-centimeter scar over his left ear which was non-tender, showed no fixation, hypertrophy, depression, or other scar abnormalities.  The examiner summarized the recent X-ray findings, and said that the skull X-ray study showed no retained foreign bodies.  The diagnoses were a shell fragment wound of the left shoulder with retained foreign body, a shell fragment wound of the left scalp without retained foreign body or residuals, and arthritis of the left acromioclavicular joint.  The examiner opined that the Veteran's shoulder pain was more likely due to his acromioclavicular arthritis which was unrelated to his shell fragment wound of the scapula.

An August 2009 VA muscle examination reflects that there was a history of trauma to the muscle of the left infraspinatus region, due to shrapnel.  It was not a through and through injury, was not infected before healing, and there were no associated bone, nerve, vascular or tendon injuries.  There was current pain.  There was weakness but no uncertainty of movement.  The muscle had not been injured, destroyed or traversed, and muscle function was normal.  There was no intermuscular scarring.  The scar was 1/4  inch by 1/2 inch, and was not painful or tender to touch, not adherent, and there were no separate entry and exit scars.  There were no residuals of nerve, tendon, or bone damage, no muscle herniation, no loss of deep fascia or muscle substance, and no joint motion was limited by muscle disease or injury.  The diagnosis was scar in the left infraspinatus region, with the effect of decreased mobility.  The examiner also stated that the scar was barely visible and he was unable to feel anything within the scar or underneath.

An August 2009 VA joints examination reflects that the Veteran's dominant hand is his right hand.  The left shoulder showed a great deal of positive rotator cuff signs, acromioclavicular joint tenderness and impingement signs.  The examiner stated that these have nothing to do with the service-connected injury here.  The shrapnel is located too far from the joint, well in the infraspinatus region.  Thus his limited shoulder range of motion and pain associated with repetitive range of motion here cannot be used for rating purposes.  This is due to the fact that all of the positive findings on examination today are due to his unrelated left shoulder joint problems like rotator cuff pathology and so on.  The examiner included a report of a June 2004 left shoulder X-ray study.

At his January 2011 Board hearing, the Veteran testified that his scalp scar was under his hair and was manifested by numbness and discomfort, and said he had pain and limitation of motion of the left shoulder.

On VA muscles examination in April 2011, the Veteran said he never had problems with his shoulder until he worked as a crane operator at his work, which required overhead pulling with that arm.  He retired 21/2 years ago, after working in a foundry for 40 years (he was a molder for 15 years, then a coresetter for 5 years, an iron pourer for 16 or 17 years, and ran a crane for 2 years).  He was reportedly seen by specialists in 2000 who told him he had rotator cuff tendinitis and osteoarthritis.  He complained of pain and weakness of the shoulder.  He said cold and damp weather bothered his shoulder.  On examination, there was no muscle loss, and it was the left infraspinatus region that was affected.  There were no adhesions, tendon damage, or bone, joint or nerve damage, and muscle strength was normal.  There was no muscle herniation.  The muscle group could move the joint through a normal range of motion with sufficient comfort, endurance and strength to accomplish the activities of daily living.  Muscle contraction was felt.  The examiner stated that the Veteran's joint function was not related to the scapula injury.  The diagnoses were status post left scapula injury with residual scar, and left shoulder rotator cuff tendonitis and osteoarthritis.  The examiner opined that the latter two diagnoses were not a result of the scapula injury.

On VA scars examination in May 2011, there was a scar at the left scalp and one at the left posterior shoulder at the scapula.  The scalp scar was a faint area measuring 3 centimeters by 2 centimeters on the left scalp, and a 3-millimeter diameter scar at the left scapula.  The scars were painless.  There was no adherence of the scars to underlying tissue.  The Veteran denied frequent loss of skin covering the scars, such as ulcerations or breakdowns.  No facial scars were present.  The Veteran denied any functional limitation due to the scar.  Non-disfiguring scars of the head, face, or neck were not present, and the scar had no effects on employment.

Left Scalp Scar, Residual of Shell Fragment Wound  

As noted above, the Veteran's residuals of a shell fragment wound of the left scalp has been rated as noncompensable under Diagnostic Code 7800, pertaining to scars with disfigurement of the head, face, or neck.

Scars such as the Veteran's left scalp scar can be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800.  Diagnostic Code 7800 pertains to scars located on the head, face, or neck.  38 C.F.R. § 4.118 (2008).  A 10 percent evaluation is warranted for disfigurement of the head, face, or neck with one characteristic of disfigurement.  A 30 percent evaluation is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement.  Id.  A 50 percent evaluation is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement.  Id.  The highest evaluation of 80 percent is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement.  Id. 

The eight characteristics of disfigurement, for purposes of evaluation under § 4.118 (2008) are:  (1) scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.).  Id. at Note (1). 

The October 23, 2008, revisions made no substantive changes to Diagnostic Code 7800.  The revisions added Note (4) (which clarified that ratings under Diagnostic Code 7800 should separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned) and Note (5) (which clarified that the characteristic(s) of disfigurement may be caused by one scar or by multiple scars and that the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation).  

As noted in the examination reports above, no disfigurement has been noted by medical personnel as due to the Veteran's single left scalp scar.  In fact, more than one examiner has been unable to find the scar.  Examination findings show that the left scalp scar is under the hair, and is shorter than 13 cm in length.  It is not elevated or depressed, adherent, pigmented, the texture is normal, there is no missing underlying soft tissue, and there is no induration of inflexibility.  However, when considering the scar under the rating criteria of Diagnostic Code 7800, the Board observes that since the May 2011 VA examiner found that the scalp scar was 3 centimeters by 2 centimeters, the scar is more than one-quarter inch (0.6 cm.) wide at widest part.  Thus, the Board finds that a higher 10 percent rating is warranted under Diagnostic Code 7800 for the left scalp scar as there is one characteristic of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2008 and 2012).

However, for the reasons and bases discussed below, and considering the scalp scar under the prior rating criteria relating to other types of scars, the Board finds no basis to assign even a compensable disability rating for the Veteran's left scalp scar under Diagnostic Codes 7801 to 7805.  38 C.F.R. § 4.118 (in effect prior to October 23, 2008, and 2012), and some of these codes are inapplicable.  

Diagnostic Codes 7801 and 7802 are not for application, as they pertain to scars other than those on the head, face, or neck.  38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2008 and 2012).  

Under prior Diagnostic Code 7803, a 10 percent evaluation is assigned for superficial, unstable scars.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at note (1).  The examinations of record show that the left scalp scar is not unstable.  As such, this code is not for application under the prior rating criteria. 

Under prior Diagnostic Code 7804, a 10 percent evaluation is assigned for superficial scars, painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1) (in effect prior to October 23, 2008).  Note (2) provides that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation (See §4.68 of this part on the amputation rule).  See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). 

The VA examinations in February 2005, April 2007 and May 2011 indicated that that the Veteran's scalp scar was not painful.  In fact, on examination in April 2007, the Veteran said that he had no problems from his scalp scar.  The Board notes that he has occasionally reported that his scar was manifested by pain.  See his January 2007 statement, and his hearing testimony.  However, during multiple VA examinations, he has consistently denied having pain from the scalp scar, and pain has never been objectively noted.  Consequently, the Board concludes that a compensable evaluation under Diagnostic Code 7804 is not warranted under the prior rating criteria.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  The Board similarly finds that a separate rating is not warranted under this Code, since the scar is not shown to be painful on examination.

The revisions to Diagnostic Code 7804 provide for evaluations of unstable or painful scars (30 percent for five or more scars that are unstable or painful; 20 percent for three or four scars that are unstable or painful; and 10 percent for one or two scars that are unstable or painful).  The notes associated with this diagnostic code were also revised (Note (1):  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar; Note (2):  If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars; and Note (3):  Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable).  A higher rating is not warranted under the revised rating criteria of Diagnostic Code 7804 as the competent and credible lay and clinical evidence of record does not show that the left scalp scar is unstable or painful.

A review of applicable rating codes reveals that the Veteran would not be entitled to any greater rating than that already provided under Diagnostic Code 7800, and that further evaluation under other diagnostic codes for rating skin disabilities is not appropriate.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Diagnostic Code 7805 provides that other scars are rated on limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).  The medical evidence demonstrates that the left scalp scar does not limit any function of the Veteran's head.  Therefore, a compensable rating under Diagnostic Code 7805 is not warranted.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).  A higher rating is also not warranted under revised Diagnostic Code 7805, which provides for evaluation of any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2012).

Finally, the Board finds that an increased rating in excess of 10 percent is not warranted for the service-connected left scalp scar, residual of a shell fragment wound, under any other relevant rating criteria.  Specifically, as the evidence does not reflect any nerve damage in the original shell fragment wound of the left scalp, and as there is no evidence of a current disability of the left scalp manifested by nerve damage, a higher rating is not warranted under the rating criteria pertaining to disease or injury of the cranial nerves.  See 38 C.F.R. § 4.124a; Esteban, supra. Similarly, as the evidence does not reflect any muscle damage of the left scalp in the original shell fragment wound, and as there is no evidence of a current disability of the left scalp manifested by muscle damage, a higher rating is not warranted under the rating criteria pertaining to muscle injuries.  See 38 C.F.R. § 4.73; Esteban, supra.

Accordingly, the Board concludes that the weight of the evidence shows that a higher 10 percent rating (but no higher) is warranted for the left scalp scar, residual of shell fragment wound, throughout the rating period on appeal.  See 38 U.S.C.A. § 5107 (West 2002).

Left Scapula Scar, Residual of Shell Fragment Wound 

The RO has rated the service-connected residual scar of a shell fragment wound of the left scapula with retained foreign body as 10 percent disabling from January 8, 2007, under Diagnostic Codes 5301-7804.

Diagnostic Code 5301 pertains to a muscle injury of Muscle Group (MG) I, and Diagnostic Code 7804 pertains to superficial and painful scars.

As noted above, when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes, but the same symptoms may not be rated twice under different codes, as this constitutes pyramiding.  See 38 C.F.R. § 4.14; Esteban, supra.  To evaluate the Veteran's service-connected residuals of shell fragment wound of the left scapula with retained foreign body, the Board will consider all potentially applicable rating criteria, including those pertaining to scars and muscle injuries.

The Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993). However, any change in Diagnostic Code must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Diagnostic Code 7800 (both old and new) is not for application to the left scapula scar, as this Diagnostic Code pertains to scars located on the head, face, or neck.  

Under the prior criteria, scars, other than head, face, or neck, that are deep or that cause limited motion warrant a 10 percent rating if the area or areas exceed 6 square inches (39 sq. cm).  A 20 percent rating requires an area or areas exceeding 12 square inches (77 sq. cm).  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2008).  A higher rating is not warranted under this code as the evidence does not show that the left scapula scar is deep or causes limited motion.  Moreover, on VA examination in August 2009, the scar was measured as 1/4  inch by 1/2 inch, while on VA examination in May 2011, the scar measured 3 millimeters.

Scars, other than head, face, or neck, that are superficial and that do not cause limited motion warrant a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater.  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.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2008).  A 10 percent rating may be assigned for scars which are superficial and unstable.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).  

A 10 percent rating may be assigned for scars which are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  The Board finds that the left scapula scar is superficial and painful on examination.  No damaged soft tissue was identified.  As such, it is properly accorded the maximum rating of 10 percent under the prior rating criteria of Diagnostic Code 7804.

Additionally, a higher rating is not warranted under Diagnostic Code 7802 for the left scapula scar as it does not cover an area or areas of 144 square inches (929 sq. cm.) or greater.  Examination findings show that this scar is much smaller:  it was measured as a 2.3-centimeter scar in 2007, and as 1/4 inch by 1/2 inch in August 2009.  A higher rating is also not warranted under Diagnostic Code 7803 as a 10 percent rating is the maximum rating available under this other code, and he already has a rating at this level.  Moreover, the weight of the evidence does not show that this scar is unstable, and thus this code is inapplicable.  Scars also may be assigned disability ratings based upon limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).  Here, though, the medical evidence on multiple VA examinations indicates the Veteran's left scapula scar does not limit the function of any nearby joints, including in terms of causing any limitation of motion.  Therefore, a higher rating under Diagnostic Code 7805 also is not warranted.

The Board also finds that a higher rating is not warranted for the left scapula scar under the revised rating criteria.  A higher rating is not warranted under Diagnostic Code 7801, as the weight of the competent and credible evidence does not show any deep and nonlinear scars of an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) or greater, which would entitle him to a 20 percent rating under Diagnostic Code 7801; the lay and clinical record does not show that he has any superficial and nonlinear scars, which would entitle him to evaluation under Diagnostic Code 7802.  The lay and clinical record does not show that he has three or four scars that are unstable or painful, and thus a higher 20 percent rating is not warranted under Diagnostic Code 7804.  38 C.F.R. § 4.118 (2012).  A higher rating is also not warranted under revised Diagnostic Code 7805, which provides for evaluation of any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code, because no additional disabling effects have been shown from this scar.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2012).

The Board will now consider this disability under the rating criteria pertaining to muscle injuries, which are addressed in 38 C.F.R. §§ 4.55, 4.56, and 4.73.  The Board finds that the evidence reflects that the Veteran suffered a muscle injury with his shell fragment wound to the left scapula region, and that a separate rating is warranted for this disability as there are compensable manifestations from the muscle injury that are distinct from his scar residuals.  See 38 C.F.R. § 4.14; Esteban, supra.

Muscle injury ratings are not to 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).  The skeletal muscles of the body are divided into muscle groups.  38 C.F.R. § 4.55(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.  38 C.F.R. § 4.56(b).

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, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe.  38 C.F.R. § 4.56(c), (d).

Disabilities are classified as slight, moderate, moderately-severe or severe under Diagnostic Codes 5301 to 5323.  38 C.F.R. § 4.73.  These terms are described in 38 C.F.R. § 4.56(d).

A slight disability of muscles stems from a simple wound of a muscle without debridement or infection.  It heals with good functional results, is superficial, results in minimal scarring and shows no impairment of function or retained metallic fragments.  There are no cardinal signs of muscle disability.  

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 for a moderate disability 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.

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 of a moderately-severe disability 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.

The criteria of 38 C.F.R. § 4.56 are only 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.  Robertson v. Brown, 5 Vet. App. 70 (1993).

The RO has rated this disability in part under Diagnostic Code 5301, which pertains to the muscles involving upwards rotation of scapula and elevation of arm above shoulder girdle:  trapezius, levator scapulae, and serratus magnus.  However, the Board notes that the VA examiners have consistently identified the location of the shell fragment wound to the left scapula area as the left infraspinatus region, i.e., Muscle Group (MG) IV.  Hence, the Board finds that Diagnostic Code 5304 is more appropriate in this case.

The function of this MG 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:  supraspinatus, infraspinatus and teres minor, subscapularis, and coracobrachialis.  For the nondominant shoulder, as here, this code provides a 10 percent rating for a moderate disability, and a 20 percent rating for either a moderately-severe or severe disability.  38 C.F.R. § 4.73, Diagnostic Code 5304.

Applying these criteria for rating muscle injuries to the applicable evidence, the Board finds that a separate 10 percent rating should be assigned for the injury to MG IV from the in-service shell fragment wound, as the evidence shows a moderate injury to MG IV, throughout the rating period on appeal.  The evidence demonstrates that he suffered a penetrating wound of a relatively short track by a shrapnel fragment (which is retained), and the absence of explosive effect of high-velocity missile and of residuals of debridement or of prolonged infection.  

The Board notes again that the Veteran's left shoulder pain has been attributed to non-service-connected acromioclavicular joint arthritis, rotator cuff tendonitis, residuals of shoulder dislocation, and cervical radiculopathy rather than to his shell fragment wound injury involving MG IV.  Multiple private and VA examiners have provided medical opinions to this effect, and the Board finds that these medical opinions are both competent and highly probative, and outweigh the Veteran's lay assertions to the effect that all of his left shoulder symptoms are due to his service-connected residuals of a shell fragment wound to the left scapula.  See his September 2009 statement.  Moreover, the Board finds that his lay assertions are not credible in this regard, particularly in light of the medical evidence showing that he did not complain of left shoulder symptoms until 2004, and as he reported to a VA examiner that he never had problems with his left shoulder until he worked as a crane operator in the past few years.  

Thus, since his shoulder pain (as distinguished from the upper back pain over his scapula) has been medically linked to arthritis and tendonitis rather than muscle damage near the scapula, the Board need not attribute the pain to his service-connected shell fragment wound injuries involving MG IV.  See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is impossible to separate the effects of the service-connected condition from a non-service-connected condition, all reasonable doubt must be resolved in the Veteran's favor according to 38 C.F.R. § 3.102 and 4.3 and, for all intents and purposes, the signs and symptoms attributed to the service-connected condition).

The Board finds that a rating higher than 10 percent is unwarranted.  Significantly, there is no evidence of a moderately-severe muscle injury.  In this regard, the evidence indicates the Veteran did not suffer a through-and-through or deep penetrating wound to his left infraspinatus (upper back, near the scapula) region, nor did he experience prolonged infection, debridement, or prolonged treatment for the wound.  There is no exit scar which is so situated as to indicate a track of a missile through one or more muscle groups, and no 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.  Additionally, there is no evidence showing he was unable to keep up with work requirements due to his scapula wound.   Records on file and the Veteran's own testimony reflect that he worked for the same employer for approximately 40 years, and retired due to a leg disability.  His left scapula scar, though as mentioned painful and tender to palpation, has not negatively impacted his strength and endurance.  In fact, the April 2011 VA muscle examiner specifically indicated that there was no muscle loss in the left infraspinatus region, and muscle strength was normal.  There were no adhesions, tendon damage, or bone, joint or nerve damage.  There was also no muscle herniation.  The muscle group could move the joint through a normal range of motion with sufficient comfort, endurance and strength to accomplish the activities of daily living.  Muscle contraction was felt.  

The Board has duly considered the Veteran's statements and personal assertions regarding the severity of his shell fragment wound residuals of the left scapula. However, his lay statements must be considered along with the objective medical evidence and findings and in relation to the applicable rating criteria, so not in isolation or a vacuum.  Furthermore, his personal opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. §§ 4.118 or 4.73 with respect to determining the severity of his disability, particularly considering there are objective means of assessing the severity of the residual scar and any muscle impairment.  Cf. Moray v. Brown, 5 Vet. App. 211, 214 (1993).  See also 38 C.F.R. § 3.159(a)(1) and (a)(2).

There are no other relevant rating criteria for application.

In sum, the Board finds that an increased rating in excess of 10 percent is denied for the service-connected residual scar from a shell fragment wound of the left scapula region, and a separate 10 percent rating is granted for a moderate muscle injury to MG IV, of the non-dominant extremity, throughout the rating period on appeal.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Extraschedular Consideration

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to VA regulation, an extra-schedular 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 would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229   (1993). 

According to the holding in Thun v. Peake, 22 Vet. App. 111 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.

First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. 

Here, though, with respect to the first prong of the Thun analysis, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected shell fragment wound residuals is inadequate. A comparison between the level of severity and symptomatology of these disabilities with the established criteria found in the Rating Schedule for these disabilities shows the rating criteria reasonably describe and contemplate his disability level and symptomatology.  See also 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See, also, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). 

The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is unwarranted.  Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

Service connection for claimed TBI residuals, to include tremors, is denied.

The claim for an increased 10 percent rating for the left scalp scar, residual of a shell fragment wound, is granted, subject to the statutes and regulations governing the payment of VA compensation. 

A rating higher than 10 percent for a painful scar of the left scapula due to a shell fragment wound is denied.

A separate 10 percent rating is granted for other residuals of the shell fragment wound to the left scapula and left infraspinatus, involving Muscle Group IV, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

The Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected disabilities (PTSD, headaches, hearing loss, tinnitus, residuals of shell fragment wound of the left scapula, and a scar of the left scalp), and that there is a derivative claim for a TDIU.  See Roberson, supra; Rice, supra.

This derivative TDIU claim needs to be further developed before being adjudicated, so the Board is remanding this derivative TDIU claim.  See VAOGCPREC 6-96 (Aug. 16, 1996); VAOGCPREC 12-2001 (July 6, 2001). Additional information is needed to determine the degree of occupational impairment resulting from the Veteran's service-connected disabilities.  See Beaty v. Brown, 6 Vet. App. 532 (1994). 

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by any disabilities that are not service connected.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. 

To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of at least 70 percent.  38 C.F.R. § 4.16(a). 
Even if the Veteran does not satisfy these threshold minimum rating requirements of § 4.16(a), it is also possible to receive a TDIU on an extra-schedular basis under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) if it is determined he is indeed incapable of securing and maintaining substantially gainful employment on account of his service-connected disabilities. 

Marginal employment, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).

As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).  To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The medical and other records on file, however, do not clearly indicate whether the Veteran is unemployable as a result of his service-connected disabilities.  So a VA examination and opinion are needed to assist in making this important determination. 

Appropriate notice for TDIU should be provided on remand.  38 U.S.C.A. § 5103(a). 

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran and his representative with appropriate notice regarding the derivative TDIU claim, and send him a TDIU application (VA Form 21-8940) and ask him to complete and return it.

Ask him to provide the names and addresses of all VA or private medical care providers that have evaluated or treated him for his service-connected disabilities since 2004.  With his authorization, obtain all identified records that are not already in the claims file.  

If attempts to obtain these records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e).

2.  Then, schedule the Veteran for a VA medical examination to determine the effect of his service-connected disabilities on his employability.  The claims file, including a complete copy of this remand, must be made available to and thoroughly reviewed by the examiner for the pertinent medical and other history. 

Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities, which at present are:  PTSD, headaches, hearing loss, tinnitus,  residuals of shell fragment wound of the left scapula, and a left scalp scar. 

The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities. 

The examination report must include a complete rationale for all opinions and conclusions expressed. 

3.  Then adjudicate the derivative TDIU claim, in light of the additional evidence.  If the claim is are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
K. PARAKKAL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs