Citation Nr: 1324675 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-06 824A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected shell fragment wound of the abdomen, with retained foreign bodies. 2. Entitlement to a rating in excess of 10 percent for the Veteran's shell fragment wound of the abdomen with laceration to the liver. 3. Entitlement to an initial compensable rating for service-connected recurring incisional hernia. 4. Entitlement to service connection for cardiovascular disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran had active service from July 1968 to February 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). This claim was previously before the Board in October 2010. At that time, the Board only considered the first issue listed above; the Board denied the Veteran's claim for an increased rating. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In a November 2011 Memorandum Decision, the Court vacated the Board's October 2010 decision and remanded the claim for further action. It was noted the Board should have construed the Veteran's claim to include an increased rating for shell fragment wound of the abdomen with laceration to the liver, which at the time also was evaluated as 10 percent disabling. In June 2012, the Board remanded these issues for additional development and they have since been returned to the Board. In this regard, however, in an October 2012 rating action, the Veteran was awarded service connection for a separate shell fragment wound residual, anterior abdominal scar, which was assigned a 20 percent rating. He has not indicated disagreement with that award, so it will not be addressed by the Board. The RO continued the 10 percent rating for disability characterized as shell fragment wound of the abdomen with retained foreign bodies; and shell fragment wound of the abdomen with laceration to the liver. The issues of entitlement to an increased rating for the Veteran's shell fragment wound of the abdomen with laceration to the liver; entitlement to an increased rating for recurring incisional hernia; and service connection for cardiovascular disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's residuals of a shell fragment wound to the abdomen with retained foreign bodies are productive of, at most, moderate disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a shell fragment wound to the abdomen have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.27, 4.40, 4.56, 4.73, Diagnostic Code 5319 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in August 2007. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Additionally, the Board also notes that action requested in the prior remand, i.e., a VA compensation examination, has been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Since the issue in this case is entitlement to an increased rating, the present level of the Veteran's disability is the Board's primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A review of the history of the Veteran's injury and claim is instructive. The Veteran was injured by an enemy mortar in January 1970; he suffered many wounds, including those to his abdomen. The Veteran first sought service connection for his residuals of a shell fragment wound to the abdomen in February 1970. The RO granted service connection in May 1970, assigning a 10 percent rating. In a 1984 review examination, the RO determined that the Veteran's multiple shell fragment wounds - including those to his abdomen - should not be rated as compensably disabling. In a July 1984 decision, the RO then reduced the Veteran's ratings for his shell fragment wounds. A November 1988 decision determined that, based on the retained fragment bodies and painful motion that the Veteran suffered, his shell fragment wounds did warrant compensable ratings. That decision thus restored the Veteran's 10 percent rating. The Veteran filed his current increased rating claim in July 2007. He contends that his residuals of the abdominal shell fragment wound are more serious than the 10 percent rating assigned. It appears that the Veteran was motivated to file his claim for an increased rating in July 2007 because he underwent surgery in May 2007 to remove shrapnel from his abdomen. The operation was performed by David Herf, M.D. Dr. Herf stated that the shrapnel was increasingly tender to the touch and very superficial. Records from that surgery reflect that the Veteran had three foreign bodies removed: one in his left leg, one from the right side of his abdomen, and one from the upper left side of his abdomen. Dr. Herf stated that the Veteran tolerated the procedure well and was in good condition. Dr. Herf also informed the Veteran that he would only remove such foreign bodies in the future if they were uncomfortable or caused infection. The Veteran underwent a VA stomach examination in August 2007. The examiner wrote that he was not able to determine without speculation whether palpation of the abdomen would reveal tenderness, masses, or organomegaly. The examiner wrote that, because of the Veteran's size, he was not able to lie on the examination table. While this inability hindered the examiner's ability to examine the Veteran's abdomen, the examiner did state that the Veteran's bowel sounds were not auscultated. X-rays performed in conjunction with the examination showed multiple irregular small metallic densities overlying the abdomen, pelvis, and femur that could be related to the Veteran's shell fragment wound. The examiner described these densities as nonspecific and stated that they may be postsurgical. A VA muscle injuries examination was conducted in July 2012. The examiner stated that the Veteran's abdominal muscle injuries did not affect muscle substance or function. He manifested none of the cardinal signs and symptoms of muscle disability, loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. There was no muscle atrophy. The examiner found the abdomen to be rotund and well healed. In an addendum dated in January 2013, the examiner stated that the Veteran's abdominal disability manifested minimal to mild functional impairment. The Veteran's residuals of a shell fragment wound to the abdomen have been rated as 10 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5319. This Diagnostic Code addresses residuals of injury to muscle group XIX, namely the muscles of the abdominal wall. The function of these muscles is support and compression of the abdominal wall and lower thorax, flexion and lateral motions of the spine, and synergists in strong downward movements of the arm. Moderate injuries are assigned a 10 percent rating, moderately severe injuries are assigned a 30 percent rating, and severe injuries are assigned a 50 percent rating. Id. Muscle disabilities are rated as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (2012). The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). A moderate disability of the muscles may result from through and through or deep penetrating wounds of relatively short track by a single bullet or small shell or shrapnel fragment. The absence of the explosive effect of a high velocity missile and of residuals of debridement or of prolonged infection also reflects moderate injury. The history of the disability should be considered, including service department records or other sufficient evidence of hospitalization in service for treatment of the wound. Consistent complaints on record from the first examination forward of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, and an effect on the particular functions controlled by the injured muscles should be noted. Evidence of moderate disability includes entrance and (if present) exit scars which are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or failure in comparative tests. 38 C.F.R. § 4.56. A moderately severe disability of the muscles is characterized by evidence of 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, or intermuscular cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. Id. The terms "moderate" and "severe" are not defined in the VA Schedule for rating disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). Also to be considered is that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Nevertheless, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. After reviewing the evidence of record, the Board concludes that the Veteran's present disability picture is accurately reflected by his current 10 percent disability rating. Throughout the rating period on appeal, evaluations of the Veteran's shell fragment wound residuals have failed to reveal any evidence of muscle trauma or muscle loss, or any related nerve, bone, joint, or tendon damage. For the Veteran's injury to be considered moderately severe and thus warrant a 30 percent rating, there must be evidence of muscle loss and related muscle weakness. There is no evidence that the Veteran has suffered muscle loss or weakness in his abdomen as a result of his shell fragment wound. The Veteran has also taken issue with the fact that the RO did not specifically address buddy statements submitted by the Veteran with regard to his abdomen wounds. The Board acknowledges that these letters have been associated with the claims file. As explained above, however, increased ratings claims are concerned primarily with the Veteran's current level of disability. The letters cited by the Veteran, on the other hand, focus on the extent of the Veteran's wounds at the time he suffered them in service. Accordingly, the Board notes that it has reviewed these letters, but in the context of an increased ratings claim, finds them to be immaterial. The Board finds the Veteran's lay statements to be immaterial for the same reason. The Veteran's lay statements have revolved around his initial in-service injury. As explained above, however, as the Veteran is already service connected for these injuries, the Board's main concern at this point is his present level of disability. Accordingly, the Board does not find the Board's lay statements to be of great probative value. The Veteran's disability is also not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2012). As outlined by the Court of Appeals for Veterans Claims, the Board uses a three-step inquiry to determine whether an extraschedular rating is warranted; "initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. In fact, the July 2012 VA examiner stated that the Veteran's abdominal muscle injuries did not impact his ability to keep up with work requirements. As the Veteran's symptoms are already provided for in the applicable rating criteria, the first threshold of the Thun framework is not met, ending the Board's inquiry. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. ORDER A rating in excess of 10 percent for the Veteran's service-connected residuals of a shell fragment wound to the abdomen with retained foreign bodies is denied. REMAND Regarding the laceration of the liver issue, the Board's 2012 Remand sought a determination as to whether there was any impairment associated with this disability beyond the overlying muscle damage. In responding to this, the examiner, on the one hand indicated that the liver had healed without residuals, but on the other hand, appeared to indicate there was a "minimal to mild level of functional impairment." This seeming contradiction should be clarified. Regarding the initial non-compensable rating for the Veteran's recently service connected recurring incisional hernia, following that decision, the Veteran expressed his disagreement with it in a November 2012 statement. As such, he should be provided a statement of the case and given an opportunity to perfect an appeal of that issue. Similarly, in August 2011, the Veteran expressed his disagreement with an August 2011 rating action that had denied service connection for a cardiovascular disorder. He should be provided a statement of the case as to that issue as well, and given an opportunity to perfect an appeal of it. Accordingly, the case is REMANDED for the following action: 1. Return the claims files to the July 2012 VA compensation examiner and give her an opportunity to review the records and provide a clarifying opinion regarding whether the Veteran's residuals of a shell fragment wound to the liver present any other functional impairment to him beyond that of muscle damage. In answering this question, the examiner should discuss whether this disability has resulted in adhesions, impairment of the function of the liver, or any other observable impact on the Veteran's internal organs and their functioning. If, for whatever reason, this examiner is no longer available or able to provide this additional comment (addendum opinion), then obtain this additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the c-files. 2. Provide the Veteran a statement of the case with respect to the issues of entitlement to an initial compensable rating for recurring incisional hernia; and entitlement to service connection for cardiovascular disease. The Veteran should be advised that if it is his desire to have the Board consider one or the other, or both of these issues, it will be necessary to submit a timely substantive appeal. 3. Readjudicate the claim for entitlement to an increased rating for the Veteran's shell fragment wound of the abdomen with laceration to the liver. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a supplemental statement of the case and afford an appropriate opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs