Citation Nr: 1327166 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-42 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence. 2. Entitlement to an evaluation in excess of 30 percent for residuals of a gunshot wound of the right shoulder, to include whether separate compensable evaluations are warranted for neurological impairment including the biceps muscle, and residual scarring. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to January 1970. He is the recipient of a Purple Heart Medal and a Combat Infantryman's Badge among his awards. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in part, granted service connection for PTSD and assigned a 30 percent disability evaluation, and continued a 30 percent evaluation for residuals of right shoulder gunshot wound with damage to Muscle Group V, atrophy of biceps, with slight reduction in cutaneous sensation of the forearm and scars. Jurisdiction of the case has since been transferred to the RO in Winston-Salem, North Carolina. Based on the evidence cited in the medical evidence cited below, the Board has re-characterized the Veteran's Muscle Group injury from V to III. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. While the case was undergoing development of the appellate issues, multiple other disabilities were found to be service connected. The ratings assigned resulted in a schedular 100 percent rating being in effect from the November 1, 2008 date of claim from which this appeal derived. One of the grants was the assignment of a 50 percent rating for PTSD effective to the date of claim for increase. It has not been indicated that this schedular rating satisfies the appeal as to this issue and it remains before the Board. In a June 2013 statement, the Veteran raised the issue of an earlier effective date for the grant of service connection for PTSD and earlier effective dates for the benefits granted for peripheral neuropathy of the extremities. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are REFERRED to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's PTSD has been manifested by panic attacks, suspiciousness, depressed mood, anxiety, sleep impairment, and mild memory loss, difficulty understanding complex commands, impaired judgment, and difficult in establishing and maintaining effective work and social relationships. It has not been shown that he has more significant impairment secondary to homicidal and suicidal ideations, obsessions that interfere with everyday activities, or other similar more significant symptoms. 2. The Veteran's residuals of a gunshot wound of the right shoulder caused damage to Muscle Group III that now more nearly approximates severe injury to that Muscle Group. There was bony fracture, significant muscle involvement, and there are retained metallic fragments. The Veteran is right handed. 3. The gunshot wound resulted in some neurological impairment which enervates the biceps muscle, which is atrophied and some loss of strength on flexion of the elbow. Complete loss of flexion is not shown, but findings commensurate with moderate incomplete paralysis of the musculocutaneous nerve of the right upper extremity are more nearly approximated. 4. On VA examination of October 19, 2012, three (3) painful scars were noted in the area of the gunshot wound and residual muscle damage. Previously residual scarring had been found to be not tender and painful on examination. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130 Diagnostic Code 9411 (2012). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for a 40 percent evaluation, but not higher, for residuals of a gunshot wound of the right shoulder, with damage to Muscle Group III, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, Diagnostic Codes 5200, 5201, 4.73, Diagnostic Code 5303 (2012). 3. With resolution of reasonable doubt in the appellant's favor, the criteria for a separate 10 percent rating for moderate incomplete paralysis of the musculocutaneous nerve, with atrophy of the biceps muscle and loss of strength of elbow flexion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.56, 4.59, 4.124a, Diagnostic Code 8517 (2012). 4. With resolution of reasonable doubt in the appellant's favor, the criteria for a separate 20 percent rating for 3 painful scars at the site of the gunshot wound are met as of October 19, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.56, 4.59, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in February 2009, prior to the May 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The February 2009 letter informed the Veteran that in order to establish a higher rating for his right shoulder disability, the evidence would need to show that his disability had increased in severity. He was informed of the type of evidence that could be submitted to support his increased rating claim. The letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the claim for PTSD, the February 2009 letter provided the Veteran with the notice required for the initial claim of service connection. Service connection was subsequently granted, and the Veteran appealed the initial rating assigned. In cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case, as the Veteran has not alleged such prejudice. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. As the Board will discuss in detail in the analysis below, the Veteran was provided with multiple VA examinations during the appeal period. A review of the VA examination reports reflects that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the disabilities. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was examined in October 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). Although in his June 2010 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran stated that his VA examination was inadequate because the examiner did not accurately diagnosed his disability (i.e. he contends that he had severe muscle atrophy, limited motion, numbness, and pain), the Veteran did not indicate nor is there evidence that the evaluation provided was inaccurate. In any case, the Veteran was afforded another examination in October 2012 and he has not argued that this examination was deficient. The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran has declined the opportunity to present personal testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. PTSD The Veteran essentially contends that his PTSD is more disabling than contemplated by the current 50 percent evaluation. Again, it is noted that this rating was increased to 50 percent late in the appeals development. It covers the period since the date of claim, but it is not clear that it satisfies the Veteran's appeal. As a result, the appeal on this issue of a further increase continues. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks an increased rating for his service-connected PTSD, which is evaluated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 is deemed by the Board to be the most appropriate diagnostic code primarily because it pertains specifically to the diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders including PTSD are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Additionally, the Veteran has not requested that another diagnostic code should be used. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2012). Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19 (2012). The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: A 30 percent disability rating is assigned for a psychiatric disorder when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Furthermore, with specific regard to the 70 percent rating, the Federal Circuit has recently held that such rating "requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki 713 F.3d 112, 118 (Fed. Cir. 2013). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). VA afforded the Veteran an examination in March 2009 during which he reported sleep disturbance (awakening in the middle of the night perspiring and unable to return to sleep), anxiety with panic attacks, social isolation, relationship difficulties, irritability, and substance abuse. He indicated that these symptoms were constant and affected his total daily functioning resulting in impaired efficiency in his career, frequent job changes, social isolation, break-up of three marriages, and inability to forge and maintain friendships. On evaluation, the examiner noted that orientation was within normal limits, appearance and hygiene were appropriate, behavior was appropriate, and eye contact was good. Affect and mood showed anxiety, and indicated a depressed mood which occurred near-continuously but did not affect the ability to function independently. Despite changing jobs, he was generally employable and able to live independently. Additionally, affect and mood test showed impaired impulse control. There was some unprovoked irritability and angry outbursts affecting motivation by avoiding certain social situations because he felt it might evoke his irritability and affect his mood leading to further social isolation. Communication, speech, and concentration were within normal limits. He had panic attacks less than once a week and they were characterized by shortness of breath, trembling, and perspiration. There were signs of suspiciousness. Also, there was no reported history of delusions or hallucinations, and none were observed during the examination. While the Veteran had obsessional rituals, they were not severe enough to interfere with routine activities. Additionally, thought process was appropriate, and he was able to read and generally understand directions. The Veteran did not have slowness of thought nor did he appear confused. Judgment was not impaired, abstract thinking was normal, and memory was mildly impaired (forgetting names, directions, recent events, and occasional directions he received). There were passive thoughts of death without a plan to kill himself, and there was no homicidal ideation. In summary, the examiner noted that following the traumatic exposure the Veteran's psychosocial functional status and quality of life resulted in social isolation, loss of friendship, three broken marriages, and job difficulties. The effects of his PTSD symptoms on his employment and overall quality of life included withdrawal, avoidance, irritability, and angry outburst independent of his drinking and even during periods of sobriety. He was intermittently unable to perform activities of daily living (but could self-provide), and his symptoms interfered with the social, marital, employment, and vocational aspects of his life. The examiner found that the Veteran's current psychotic symptoms caused occupational decrease in work efficiency and intermittent inability to perform occupational tasks although he was generally functioning satisfactorily with routine behavior, self-care, and normal conversation. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss (e.g. forgetting names, directions, or recent events), and difficulty understanding complex commands due to reported mild recent memory problems. The Veteran did not appear to pose a threat of danger or injury to himself or others. Diagnoses of PTSD and alcohol dependence were noted, and a GAF score of 55 was assigned. The Veteran was afforded another examination in October 2012. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational talks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner indicated that she was not able to differentiate the portion of the occupational and social impairment caused by each of the diagnosed disorders (i.e. PTSD and alcohol dependence) as the symptoms of the disorders intermingled, overlapped, influenced, and/or interacted with each other (e.g., depressed mood was a possible consequence of alcohol consumption and alcohol consumption could be a maladaptive strategy for alleviating the symptoms of depression or anxiety common to PTSD). The Veteran reported having a fair relationship with his sister, being unmarried, and having one child with whom he had a very good relationship. He indicated that he was a loner and that this daughter was his best friend, spent his free time watching television or movies, and did not engage in organized activities or hobbies. Since his last VA examination, the Veteran had quit his job as his company was headquartered in Virginia and he wanted to live in North Carolina. Although he denied a current history of active suicide thoughts, plans, or behaviors; he admitted to a history of passive thoughts of death a few times a year for forty years but denied a history of homicidal ideation. The Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that the Veteran's chronic alcohol use helped him manage his PTSD symptoms. Diagnoses of PTSD and alcohol dependence were noted, and a GAF score of 55 was assigned. Based on review of the evidence the Board finds that an evaluation of 50 percent, but not higher, is appropriate for the Veteran's PTSD for the entire period on appeal. In addition to his panic attacks, suspiciousness, depressed mood, anxiety, sleep impairment, and mild memory loss, the Veteran has demonstrated difficulty understanding complex commands, impaired judgment, and difficult in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). However, the Board finds that an evaluation in excess of 50 percent (i.e. a 70 percent evaluation) is not warranted as the Veteran has not been shown to have a degree of occupational and social impairment so as to result of deficiencies in most areas. While he had obsessional rituals, they did not interfere with routine activities. Also, he did not have intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or an inability to establish and maintain effective relationships. Id. In fact, the Veteran has demonstrated normal speech and orientation and the ability to adequately groom himself. The record reflects that he denied a current history of suicidal ideation. Furthermore, he had a fair relationship with his sister and a very good relationship with his child. Moreover, he has not demonstrated total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name to warrant a 100 percent evaluation. Id. Additionally, the Veteran's GAF scores of 55 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); 38 C.F.R. § 4.130 (2012) (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). In conclusion, taking into consideration all of the evidence of record, the Board finds that a 50 percent evaluation for the entire period on appeal is the most appropriate evaluation for the Veteran's PTSD. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991); see also supra Fenderson v. West, 12 Vet. App. 119 (1999). Residuals of Right Shoulder Gunshot Wound The Veteran essentially contends that his residuals of a gunshot wound of the right shoulder are more disabling than contemplated by the current 30 percent disability evaluation. The Board essentially agrees as set forth herein. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. As set out herein, one of the increased ratings stems from findings on a recent examination, so the increase is effective the date entitlement arose. Other ratings can be assigned as of the date of the claim in this appeal. The Veteran's service-connected disability is currently rated under Diagnostic Codes 8517-5305. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 8517 addresses disabilities involving the musculocutaneous nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8517 (2012). Under this provision, disability ratings of 0, 10, and 20 percent are assignable for incomplete paralysis that is mild, moderate, or severe, respectively. A 30 percent rating is also assignable under this code for complete paralysis involving the major extremity, with evidence of weakness but not loss of flexion of elbow and supination of forearm. 38 C.F.R. § 4.124a (2012). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. As to Diagnostic Code 5305, which rates impairment to Muscle Group V, the Board finds that based on the evidence discussed below, the Veteran's disability would best be evaluated under Diagnostic Code 5303 for Muscle Group III which includes the pectoralis major (clavicular) and deltoid. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (finding that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As Muscle Group III has been identified as the site of the Veteran's disability, the Board will evaluate the Veteran under this diagnostic code. The Board notes that all of the rating criteria for evaluating the various muscle groups of the shoulder girdle and arm are the same. The Board notes however, that the rating assigned for Muscle Group V contemplated the reported atrophy of the biceps muscle. That muscle is not contemplated in Muscle Group III involvement, although Muscle Groups III and V work together to perform similar functions. The biceps atrophy will be contemplated in the separate neurological rating to be assigned. Under Diagnostic Code 5303, a noncompensable rating is warranted for a slight disability. A 20 percent rating is assigned for a moderate disability of the dominant or non-dominant extremity. A 30 percent rating is assigned for a moderately severe disability for the dominant extremity. A 40 percent rating for severe disability of the dominant extremity. 38 C.F.R. § 4.73 (2012). Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d) (2012). Slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1) (2012). Moderate muscle disability contemplates a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in- service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2) (2012). Moderately severe muscle disability contemplates a through-and-through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3) (2012). Severe muscle disability contemplates a through-and-through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to Muscle Groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4) (2012). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electro diagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). Other relevant rating criteria include limitation of motion of the arm. A 20 percent rating is assigned for limitation of motion of the major arm to the shoulder level. A 30 percent rating is warranted for limitation of motion of the major arm to midway between the side and shoulder level. A 40 percent rating requires that motion of the major arm be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Standard range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I (2012). Ankylosis of the scapulohumeral articulation of the major upper extremity is rated 30 percent when favorable (abduction to 60 degrees, can reach mouth and head); it is rated 40 percent when intermediate (between favorable and unfavorable); and it is rated 50 percent when unfavorable (abduction limited to 25 degrees from side). 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2012). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Service treatment records showed that in March 1968, the Veteran received a gunshot wound to the posterior right shoulder, which was a through and through open wound entering the right shoulder and exiting the right anterior chest wall with brachia plexus involvement, particularly the musculocutaneous nerve and with retained metallic fragment. There was no artery involvement. There was also an open fracture of the cortical humeral head on the right secondary to the right shoulder wound. There was paralysis of the muscle innervated by the right musculocutaneous nerve manifested by loss of sensation in the area of the lateral aspect of the right forearm secondary to nerve injury. There had been debridement n the date of injury with delayed primary closure. When transferred for subsequent hospitalization and treatment, initially he had difficulty moving his fingers, but that improved with treatment. A VA examination was conducted in March 1970. The Veteran reported that he had good pushing power with the right upper extremity, but poor pulling power. Extension of the right elbow was good, but there was reduced strength in flexion. On examination there was noted to be some loss of substance of the Pectoralis major muscle. Scarring was stable and non-tender. The circumference of the right upper arm was 101/4 inches, while the left was 111/2 inches. There was some loss of sensation over the musculocutaneous nerve group in the right forearm, with good forearm strength. There was atrophy of the biceps muscle, and the aforementioned nerve damage, with other nerves of the brachial plexus not being involved. The diagnosis was of a gunshot wound of the right shoulder with resulting division of the musculocutaneous nerve production minor injury to the right Pectoralis major muscle, atrophy of the biceps muscle with slight reduction in cutaneous sensation of the area supplied by the affected nerve. On VA examination in March 2009, the Veteran reported constant pain in the right shoulder that traveled down to the right hand. The pain was described as burning and sharp, evaluated as a 7 out of 10, elicited by physical activity, and relieved by rest. He could function without medication. He also had intermittent tingling and numbness of all fingers in the right hand, but no loss of strength, weakness, easy fatigability, pain, impairment of coordination, and inability to control movement. The examiner indicated that there were no complications from the muscle injury, the injury did not affect the functioning of the body, and the Veteran was able to keep up with his normal work requirements. The Veteran indicated that his functional impairment was decreased strength of the right arm. On evaluation, there was a depressed scar on the posterior aspect of the right shoulder measuring about 5 cm by 1 cm and was characterized by disfigurement, adherence, tissue loss of less than 6 square inches, hypopigmentation of more than 6 square inches, and abnormal texture of more than 6 square inches. However, there was no tenderness, ulceration, instability, inflammation, edema, keloid formation, hyperpigmentation, or limitation of motion. Additionally, there was a depressed scar on the anterior right shoulder measuring 20 cm by 1 cm, characterized by disfigurement, tissue loss of more than 6 square inches, hypopigmentation of more than 6 square inches, and abnormal texture of more than 6 square inches. There was no tenderness, ulceration, adherence, instability, keloid formation, hyperpigmentation, inflammation, edema, or limitation of motion. There was no evidence of hand tremors on evaluation, and it was noted that the Veteran was right hand dominant. Range of motion of the shoulder was as follows, right shoulder: flexion to 90 degrees with pain at 90 degrees (normal range of movement is 180 degrees), abduction to 90 degrees with pain at 90 degrees (normal range of movement is 180 degrees), and internal and external rotation to 90 degrees (normal range of motion is to 90 degrees for each movement). The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Neurological evaluation showed that there was no peripheral nerve involvement, cerebellar function was intact, and Babinski sign was negative. Right shoulder x-rays were within normal limits; there were numerous metallic foreign bodies in the anterior chest and axillary region, consistent with history. The examiner noted a diagnosis of gunshot wound to the right shoulder with damage to Muscle Group V, atrophy of biceps musculature with slight reduction in cutaneous sensation of area forearm. On VA scar examination in October 2012, the examiner noted a right posterior shoulder scar from healed entry shrapnel wound. The Veteran reported that the three right shoulder scars were manifested as a sharp, stinging pain on his shoulder, but was not unstable with frequent loss of covering of skin over the scar, both painful and unstable, or due to burns. Evaluation of the scar on the back of the shoulder revealed it was linear, measuring 7 cm, did not result in limitation of function, and there were no findings or complications associated with the scar. The examiner indicated that the Veteran's scar did not impact his ability to work. The Veteran was also afforded an examination for his gunshot wound at this time. The diagnosis was right brachial plexitis associated with residual shrapnel from penetrating shrapnel wound to the right shoulder/chest. It was noted that he had a penetrating muscle injury and was right hand dominant. Additionally, the examiner found that the Veteran had a right sided injury to Muscle Group III, which involves the intrinsic muscles of the shoulder girdle: pectoralis major, deltoid; with the function of elevation and abduction of the arm to level of shoulder, forward and backward swing of arm. As to the scar, the examiner indicated that it was ragged, depressed, and adhered indicating wide damage to muscle groups in missile track. There were no known fascial defects or evidence of fascial defects associated with any muscle injuries. The muscle injuries affected muscle substance/function by some impairment of muscle tonus and some loss of muscle substance. He had the following cardinal signs and symptoms of muscle disability in right Muscle Group III: consistent loss of power, consistent weakness, and occasional lower threshold of fatigue. On muscle strength testing, he demonstrated less than normal strength (4/5) on right shoulder abduction, elbow flexion, and wrist flexion; and normal strength (5/5) on right elbow extension and wrist extension. There was no muscle atrophy, the Veteran did not use assistive devices, and there was no functional impairment of an extremity such that no effective function remained other than which would be equally well served by an amputation with prosthesis. X-rays showed evidence of retained shell fragment/shrapnel and minute multiple scatter foreign bodies indicating intermuscular trauma and explosive effect of the missile in right Muscle Group III. There was degenerative joint disease of the right shoulder, and the examiner indicated that the previous diagnosis of gunshot wound to the right shoulder with damage to Muscle Group V was changed to Muscle Group III, the remaining diagnoses of atrophy of biceps and slight reduction in cutaneous sensation of the forearm remained unchanged. Lastly, the examiner noted that the functional impact of the disability was moderate impairment on the Veteran's ability to work. Based on the medical evidence and affording the Veteran all benefit of the doubt, the Board finds that the Veteran's residuals of right shoulder gunshot wound with damage to Muscle Group III warrant a severe rating to that group. This results in the assignment of a 40 percent evaluation for damage to that Muscle Group. It is noted that the Muscle Group III and group V both, impart, control shoulder motion. In addition, Muscle Group V controls some function of elbow function. This is considered and receives a separate compensable rating for neurological impairment as set forth below. The Board has considered whether an evaluation higher than a 40 percent rating is warranted. However, the Veteran has not been shown to have unfavorable ankylosis to warrant a higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2012). Separate ratings for limitation of motion are not for assignment, as the motion limitation is contemplated in the disability rating assigned for the muscle injury. In sum, the muscle damage to the Veteran's right shoulder disability meets the criteria for a 40 percent evaluation, but not higher, for the entire period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, there is evidence of biceps atrophy and some limitation of flexion strength in the right elbow. Findings reveal that impairment is consistent with impairment to the musculocutaneous nerve. This enervates the biceps muscle and controls sensation down into the forearm. The findings recorded are consistent with moderate incomplete paralysis of the nerve warranting a separate 10 percent rating based on this impairment. Findings of severe or complete paralysis are not shown, so a higher rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8517. This rating should be assigned for the entire appeal period. Finally on examination on October 19, 2012, it was noted that the Veteran had three scars that were said to be painful. They were not unstable. Under Diagnostic Code 7804, effective as of October 2008, this warrants a 20 percent rating, but no more. There is no other basis to sign a higher rating for the residual scarring. This rating should be effective October 19, 2012, as this is when entitlement arose. Prior exams had described the scarring as non tender, and did not otherwise provide a basis for assignment of a compensable rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's various disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Veteran's intermittent inability to work as result of his PTSD is explicitly considered in the criteria for evaluating his psychiatric disability. Likewise, the Veteran's complaints of pain and functional limitations are specifically contemplated in the criteria for evaluating muscle injury disabilities. Both set of criteria practicably represent the average impairment in earning capacity resulting from the Veteran's respective disabilities. See 38 C.F.R. § 4.1 (2012). In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case a total schedular rating has been assigned for the entire period. It is not otherwise contended that a single service connected disorder renders the appellant unemployable, and as such, the issue is not considered to be raised. (CONTINUED ON NEXT PAGE) ORDER An initial evaluation in excess of 50 percent for PTSD with alcohol dependence is denied. An evaluation of 40 percent for residuals of right shoulder gunshot wound with damage to Muscle Group III is granted, subject to the regulations governing the award of monetary benefits. A separate 10 percent rating for neurological damage to the right musculocutaneous nerve is granted, subject to the law and regulations governing the award of monetary benefits. A separate 20 percent rating for painful residual scarring from a gunshot wound of the right shoulder is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs