Citation Nr: 1328555 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 05-07 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an increased rating for a gunshot wound of the right arm, rated as 30 percent disabling, for the purpose of accrued benefits. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected disability, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served as a recognized guerilla from October 1942 to January 1944 and February 1944 to November 1945. The Veteran died in February 2004, and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. By way of background, the Veteran appealed an October 2002 rating decision of the RO, which denied an increased rating for a gunshot wound of the right arm; SMC based on aid and attendance or housebound status; and TDIU. At the time of his death, the Board had not issued a decision on the appeal. The Board issued a decision in April 2004, after the Veteran's death. That decision was vacated by a May 2007 decision. In an August 2004 rating decision, the RO, in pertinent part, denied an increased rating for a gunshot wound of the right arm; SMC based on the need for aid and attendance or being housebound; and TDIU, all for the purpose of accrued benefits. In May 2007, the Board, in pertinent part, denied the disabilities on appeal for the purpose of accrued benefits. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (the Court) which, in February 2009, vacated the Board decision in part and remanded the issues on appeal for further consideration. In a November 2010 decision, the Board denied the claim of SMC based on the need for aid and attendance or being housebound, for the purpose of accrued benefits, and remanded the issues of increased rating for a gunshot wound of the right arm and TDIU, both for the purpose of accrued benefits. The adjudication of an accrued benefits claim is limited to the evidence physically or constructively of record at the time of the Veteran's death. 38 C.F.R. § 3.1000(a); see also Ralston v. West, 13 Vet. App. 108, 113 (1999); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). Thus, although the Board remanded for further opinion in November 2010, in light of 38 C.F.R. § 3.1000(a), none of the medical evidence not physically or constructively of record at the time of the Veteran's death in February 2004 may be considered in this disposition of this appeal. FINDINGS OF FACT 1. The Veteran sustained a gunshot wound of the right arm during service that resulted in severe injury to the affected muscle group. 2. The Veteran's only service connected disability was residuals of a gunshot wound to the right arm, rated 40 percent; the evidence does not indicate that he was precluded from securing and following some form of substantially gainful employment as a result of his service- connected disability. CONCLUSIONS OF LAW 1. For the purpose of entitlement to accrued benefits, at the time of the Veteran's death, the criteria for a rating of 40 percent for a gunshot wound of the right arm were met. 38 U.S.C.A. §§ 1155, 5121 (West 2002); 38 C.F.R. §§ 3.321, 3.1000, 4.1-4.16, 4.56, 4.73, Diagnostic Code 5303 (2013). 2. For the purpose of entitlement to accrued benefits, at the time of the Veteran's death, the criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. § 1155, 5121 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.1000, 4.1-4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. 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). A July 2004 letter notified the appellant of the criteria for her claims for an increased rating and TDIU (for accrued benefit purposes). The letter also advised the appellant of the distribution of duties in obtaining evidence. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); and Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant has not been notified of the type of information and evidence necessary to establish an increased rating or an effective date. See Dingess/Hartman, 19 Vet. App. at 488. The RO will assign an effective date for the grant of increased rating for gunshot wound of the right arm. Thus, a remand to accord the RO, through the AMC, an opportunity to furnish the appellant with this notification is not necessary. The appellant 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). Furthermore, there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes private treatment reports, VA examination reports, and VA medical opinions. Consideration for accrued benefits should include only evidence in the file at the time of the Veteran's death. 38 C.F.R. § 3.1000. Accordingly, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the accrued benefits claims. Accrued Benefits The Veteran appealed an October 2002 rating decision of the RO, which denied the disabilities for accrued benefits purposes at issue. At the time of his death, the Board had not issued a decision on the appeal. The Board issued a decision on April 14, 2004, after the Veteran's death. That decision was vacated by a decision issued in May 2007. 38 C.F.R. § 20.904. Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Increased Rating: Gunshot Wound of the Right Arm Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The evaluation of the same disability, however, under various diagnoses should not occur. That is to say that the evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran's gunshot wound disability of the right arm was rated under 38 C.F.R. § 4.73, Diagnostic Code 5303. The code indicates that a 30 percent rating is warranted for a moderately severe muscle disability of the dominant hand. A 40 percent rating, the highest rating, is warranted for a severe disability of the muscle. An April 1954 VA examination revealed a smooth, non- adherent, non-tender scar, 1/2 inch by 1/4 inch, and an exit scar that was smooth, round, non-adherent, non-tender and 1/2 inch in diameter. The physician found that there was a through and through gunshot wound with slight weakness of the right upper extremity. An October 1974 treatment record indicates that the Veteran was treated for severe neuritis of the right upper extremity from October 18, 1974 to October 24, 1974. The claims file contains a photograph of the Veteran, apparently taken at the time of an August 1990 field examination. He is holding a sign bearing his name with both hands. The Veteran's right arm is seen lifted and he is gripping the sign with his right hand. A May 1998 VA examination showed that the Veteran's right arm had been amputated (below the location of the gunshot wound) due to a non-service connected "hacking" injury. The examiner noted that it appeared that ankylosis resulted from non-use of the right shoulder due to the amputation. However, the examiner also found that the Veteran was in a lot of pain and that the residuals of the amputation could not be separated from the residuals of the gunshot wound. The Veteran underwent an August 2002 examination. The examiner noted the Veteran had right shoulder pain, usually precipitated by cold weather, and also noticed at night. On range of motion testing, the Veteran had 45 degrees of flexion and 45 degrees of abduction of the right shoulder. Under 38 C.F.R. § 4.56(c), 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. The Veteran's impairment was rated as moderately severe. 38 C.F.R. § 4.56(d) sets forth the criteria for evaluating the severity of a muscle disability. A moderately severe disability of the muscles is characterized by: Type of injury: Through-and-through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaint: Evidence of in-service hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56 (c) and, if present, evidence of inability to keep up with work requirements. Objective findings: Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. A severe disability of the muscles is characterized by: Type of injury: Through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. History and complaint: Record of in-service hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56 (c), worse than those shown for moderately severe muscle injuries and, if present, evidence of inability to keep up with work requirements. Objective findings: Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. The following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; induration or atrophy of an entire muscle following simple piercing by a projectile. In considering the conflicting statements of the May 1998 VA examiner in the light most favorable to the claimant, the Veteran had ankylosis of the right shoulder that could not be disassociated from his service connected gunshot wound residuals. Resolving reasonable doubt in the claimant's favor, the service connected gunshot wound residuals constituted a severe muscle injury warranting the maximum 40 percent rating under 38 C.F.R. § 4.73, Diagnostic Code 5303. Diagnostic Code 5200 provides for the evaluation of a shoulder and arm disability if there is ankylosis of the scapulohumeral articulation, including a 50 percent disability rating for unfavorable ankylosis with abduction limited to 25 degrees from the side for the major arm and shoulder. 38 C.F.R. § 4.71a. While the Board accepts that the Veteran had ankylosis of the right shoulder for purposes of finding a severe disability under Code 5303, it is clear from the August 2002 VA examination that showed 45 degrees of flexion and 45 degrees of abduction of the right shoulder, that the Veteran's ankylosis would not support a 50 percent rating under Code 5200. Diagnostic Code 5202 provides for evaluation of a shoulder and arm disability for other impairment of the humerus, including the following ratings for a major upper extremity shoulder condition: 50 percent rating for fibrous union of the humerus; 60 percent rating for nonunion of the humerus (false flail joint); and 80 percent rating for loss of head of the humerus (flail shoulder). There is no evidence of any of these conditions and application of Diagnostic Code 5202 is not warranted. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2012). The applicable rating criteria here are adequate to evaluate the Veteran's disability. The evidence shows that the Veteran's service-connected residuals of a gunshot wound resulted in pain and ankylosis of the shoulder. These symptoms are considered by the Diagnostic Code under which his disability has been rated, which contemplates severe impairment of function of the affected area. There is no evidence of marked interference with employment or frequent hospitalizations. The Veteran's symptoms are provided for in the applicable rating criteria. As the first threshold is not met the Board's inquiry is ended. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Based on the evidence of file at the time of the veteran's death, a rating of 40 percent, and not in excess thereof, for gunshot wound of the right arm was warranted. Accordingly, a 40 percent rating for gunshot wound for the purpose of accrued benefits is warranted. Total Disability Rating Based on Individual Unemployability (TDIU) During the Veteran's life, his only service-connected disability was the gunshot wound disability, now rated at 40 percent. The record indicates that the Veteran had severe nonservice-connected disabilities, including an amputated right arm. A veteran may be awarded a TDIU rating 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. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The issue is whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities did not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). In determining whether the Veteran is entitled to a TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability was whether the veteran, as a result of his service-connected disabilities alone, was unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran's 40 percent rating for his service-connected disability at the time of his death did not meet the percentage requirements for consideration of a TDIU rating on a schedular basis under 38 C.F.R. § 4.16(a). The Board does not have authority to assign a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Moreover, the Board sees no exceptional or unusual circumstances that would warrant referral of the case to the appropriate VA official for consideration of a TDIU rating on an extraschedular basis. The preponderance of the evidence is against the claim that the Veteran's service-connected disability precluded him from securing or following substantially gainful employment and a TDIU rating is not warranted. Accordingly, a TDIU rating for accrued benefits purposes is not warranted. ORDER A rating of 40 percent for a gunshot wound of the right arm, for the purpose of accrued benefits, is granted. A total disability rating based on individual unemployability due to service connected disability, for the purpose of accrued benefits, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs