Citation Nr: 1330530 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-42 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating higher than 10 percent for the service-connected residuals of a shrapnel fragment wound to the right upper arm. 2. Entitlement to a rating higher than 10 percent for the service-connected residuals of a shrapnel fragment wound with laceration of the liver and diaphragm. 3. Entitlement to a rating higher than 10 percent for the service-connected residuals of a shrapnel fragment wound to the right thorax. 4. Entitlement to a rating higher than 10 percent for the service-connected residuals of a shrapnel fragment wound to the right kidney, with capsulotomy. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. His awards and decorations include the Combat Infantry Badge and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part continued current 10 percent ratings for residuals of fragment wounds to the right upper arm, right thorax, right kidney and with laceration of the liver and diaphragm. In December 2010 the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing; a transcript of the hearing is of record. In conjunction with the hearing he submitted documents to be included in the file, along with a waiver of RO jurisdiction, and the Board has accepted this new material for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2013). FINDINGS OF FACT 1. The Veteran is right-handed. 2. The disability picture associated with residuals of a fragment wound to the right upper arm most closely approximates moderately severe, but not severe, impairment of Muscle Group V. 3. The disability picture associated with residuals of a fragment wound with laceration of the liver and diaphragm most closely approximates moderate impairment of Muscle Group XIX; organic residuals of injury to the liver or diaphragm are not shown. 4. The disability picture associated with residuals of a fragment wound to the right thorax most closely approximates moderate impairment of Muscle Group XXI. 5. Prior to December 8, 2010, residuals of a fragment wound to the right kidney with capsulotomy were manifested by urinary frequency with voiding 4-5 times per day and once per night, with occasional trace hematuria but no demonstrated kidney disease. 6. From December 8, 2010, residuals of a fragment wound to the right kidney with capsulotomy have been manifested by urinary frequency with daytime voiding interval between 1 and 2 hours, but not by urinary retention or by urinary frequency with daytime voiding interval less than one hour or wakening to void 5 or more times per night; the Veteran has had occasional trace hematuria but no demonstrated kidney disease. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but not more, for residuals of a fragment wound to the right upper arm are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5305 (2013). 2. The criteria for a rating higher than 10 percent for residuals of a fragment wound with laceration of the liver and diaphragm are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5319 (2013). 3. The criteria for a rating higher than 10 percent for residuals of a fragment wound to the right thorax are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5321 (2013). 4. The criteria for a rating of 20 percent, but not more, for residuals of a fragment wound to the right kidney with capsulotomy are met effective from December 8, 2010, but not before. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7512 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In letters dated in January 2007 and June 2008, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The case was last adjudicated in September 2010. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In any event, the Veteran has not pointed to any prejudice resulting from the timing or content of notice provided. 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). VA has also made reasonable efforts to obtain relevant records adequately identified by the Veteran. In this regard, the claims file includes service treatment records and relevant post-service treatment records and examination reports; the Veteran has not otherwise identified existing records that should be obtained. The Veteran has been afforded appropriate VA examinations in regard to the claims for higher rating, most recently in February 2010; the Veteran has not asserted, and the evidence of record does not suggest, his disabilities have changed significantly since that examination. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the Veteran, the Veteran volunteered his treatment history, and the Veteran's representative and the VLJ asked questions concerning symptomatology related to his increased rating claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Applicable Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Shrapnel injuries may result in damage to the bones, muscles, organs or nerves, and the Board will consider those rating criteria as appropriate. Shrapnel injuries also result in scars, but in this case, the Veteran is separately compensated for his scars related to the shrapnel wounds, so evaluation of scars will not be considered below. A through-and-through injury with muscle damage shall be evaluated as no less than "moderate" injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(b). Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as "slight," "moderate," "moderately severe" or "severe" as follows: Slight disability of muscles. Type of injury: Simple muscle wound without debridement or infection. History and complaint: Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined above. Objective findings: Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of muscle function or retained fragments in the muscle tissue. 38 C.F.R. § 4.56(d)(1). Moderate disability of muscles. Type of injury: Through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement or prolonged infection. History and complaint: Service department record or other evidence of in-service treatment of the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms as defined above, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings: Entrance and (if present) exit scars, small or linear, indicating a short track of the missile through muscle tissue. Some loss of deep fasciae or muscle substance or impairment of muscle tonus and loss of power or lower threshold or fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). Moderately severe disability of muscles. Type of injury: 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 intermuscular scarring. History and complaint: Service department record or other evidence showing hospitalization for a prolonged period of treatment of the wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined above and, if present, evidence of inability to keep up with work requirements. Objective findings: Entrance and (if present) exit scars indicating track of the missile through one or more muscle groups. Indications on palpation of loss of deep fasciae, muscle substance or normal firm resistance of muscles compared to the sound side. Tests of strength compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of muscles. Type of injury: Through-and-through or deep penetrating wound due to a high-velocity missile 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: Service department record or other evidence showing hospitalization for a prolonged period of treatment of the wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined above, 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 the missile track. Palpation shows loss of deep fasciae or muscle substance, or soft flabby muscles in the 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. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the projectile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability on appeal. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Nature of the injury Service treatment records (STRs) show the Veteran was wounded by a hostile booby trap on April 27, 1969, which resulted in multiple fragment wounds. He was treated in Vietnam until April 30, including exploratory laparotomy and suture repair of the right lobe of the liver, capsulotomy of the right kidney and repair of the rent in the diaphragm. Postoperative course was entirely within normal limits. On April 30 the Veteran was transported to Japan for further care. However, urinalysis continued to show blood, and the Veteran was evacuated to Walter Reed Army Medical Center, where he was treated from May 20 to June 23. Treatment notes from Walter Reed state that all wounds were healed on admission; the only unresolved medical issue was hematuria. He was discharged back to duty on June 23 with a temporary P-3 profile. (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 [high level of fitness] to 4 [medical condition or physical defect that is below the level of medical fitness required for retention in the military service]. The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991), for an explanation of the military medical profile system.) At the time of his separation physical examination in May 1970 the Veteran's clinical evaluation of all physical systems was "normal" and his PULHES profile was 111111. Evaluation of a fragment wound to the right arm The Veteran's musculoskeletal injury associated with the fragment wound to the right arm is rated under the criteria of 38 C.F.R. § 4.73, Diagnostic Code (DC) 5303 (injuries to Muscle Group V). The rating criteria distinguish between the dominant and non-dominant extremities. Because the Veteran is shown to be right-handed, the criteria for the dominant extremity apply, as follows. A noncompensable rating (0 percent) is assigned for a slight disability. A rating of 10 percent is assigned for a moderate disability. A rating of 30 percent is assigned for a moderately severe disability. A rating of 40 percent is assigned for a severe disability. The definitions of "slight," "moderate," "moderately severe" and "severe" are found in 38 C.F.R. § 4.56, as cited above. Service treatment records (STRs) characterized the right arm wound as a "grazing" wound of the right arm, without artery involvement but with sensory loss to the right median nerve. As noted above, the Veteran's wound was treated in Vietnam and Japan but was essentially resolved when he arrived at Walter Reed Army Medical Center for follow-up. The Veteran had a VA examination in July 1970 that showed no objective evidence of impaired function of the right upper extremity (RUE), and X-ray of the RUE was negative for any abnormality. However, a rating decision in October 1970 granted service connection for residuals of a fragment wound to the right upper arm and assigned a 10 percent rating. The Veteran's claim for increased rating was received in November 2006. The Veteran received VA treatment in December 2006 in conjunction with a new fracture of the tibia. Clinical examination at the time is silent for any dysfunction of the RUE. Musculoskeletal examination at the time showed full range of motion (ROM) of all joints and optimum muscle tone in all four extremities, with absence of muscle contractures, spasticity or weakness. Integumentary examination noted absence of scars. The Veteran had a VA examination in February 2007, performed by an examiner who reviewed the claims file. The examiner noted the fragment entered the right upper arm and exited the right axillary area. The Veteran denied additional treatment for muscle injury since service, but complained of right upper arm pain that occurred 2-3 times per day and lasted up to 10 minutes. He also reported pain traveling down the right arm occurring 4-5 times per day and lasting 10-15 minutes. He also reported numbness of the hand and a sensation of cold in that hand at temperatures of 40 degrees or less; the numbness became manifest one year before. The Veteran denied flare-ups and stated it did not affect activities of daily living (ADLs). The Veteran denied loss of function or treatment. The examiner noted that the nerves affected could include the median and ulnar nerves. The examiner recorded the characteristics of the scar on the upper right arm. The right arm had no limitation of motion on examination; ROM of the shoulder was normal and the only limitation was a slight pulling and tightness at the extreme of motion due to the scar. There was no limitation to the right elbow and no additional limitation of function due to pain, weakness, decreased endurance or fatigability, to include on repetitive motion. ROM of the fingers was also normal. Neurological examination showed cranial nerves to be intact. Grip, shoulder and digit strength on the right side was 5/5. Extremities were warm to the touch and sensation was normal. There was no muscle atrophy or weakness. The examiner diagnosed shrapnel fragment wound to the upper right arm with residual pain but no joint involvement. The examiner also diagnosed right hand numbness per the Veteran's report but without additional clinical findings. The Veteran was subsequently reexamined in February 2010, again by an examiner who reviewed the claims file. The Veteran denied having had treatment for his right arm since the last VA examination. He reported continued pain in the upper right arm and shoulder and numbness in the right hand, but denied any other symptoms involving the right arm. The Veteran reported that lifting, pushing or pulling 10-15 pounds produced pain in the right upper arm and shoulder of 5/10 severity; he also complained of constant right hand numbness with increased severity associated with excessive use of the hand or exposure to cold. He also complained of constant pain in the right upper arm and shoulder of 4/10 severity, with flare-ups to 5/10 severity occurring 3-4 times per week and lasting 5-10 minutes. Flare-ups were alleviated by rest. Numbness and tingling of the hand also happened 4-5 times per week and lasted as long as the Veteran was exposed to cold. The Veteran endorsed using pain medication but denied using assistive devices for the right shoulder, arm or hand. He reported tenderness in the right upper arm and shoulder area but not in the right hand; conversely, he endorsed stiffness in the right hand associated with cold weather but denied stiffness in the arm or shoulder. He endorsed weakness and instability in the right hand, shoulder and upper arm, and stated the RUE was not as strong as the left even though he is right-handed. In regard to impairment of activities of daily living (ADLs), the Veteran complained of reduced dexterity that caused some difficulty with dressing and chores. In terms of occupational impairment, he stated he was a freelance photographer and his disability made it difficult to carry equipment. The Veteran denied use of assistive devices for the right upper arm. Clinical examination showed the Veteran to have tenderness to palpation of the right shoulder. ROM of the shoulder was forward flexion 0-170 degrees with pain; abduction was 0-160 degrees with pain. Internal and external rotation was 0-90 degrees with pain. Repetitive use of the shoulder resulted in increased pain but no increased loss of ROM. The upper arms and forearms had equal measurements bilaterally. Coordination of the right hand was intact, but vibratory sensation was decreased in the index and long fingers (the other fingers were intact). Deep tendon reflexes (DTRs) of the RUE were 2+. Grip strength was 4-5/5. Upper arm strength of the RUE was 4/5, compared to 5/5 for the left. ROM of the right elbow was flexion 0-140 degrees and pronation and supination 0-90 degrees, both with pain in the upper arm but no pain in the elbow joint. Repetitive use of the elbow resulted in increased pain but no increased loss of ROM. ROM of the fingers of the right hand was essentially normal; making a tight fist that flexed the bicep muscle caused pain in the upper arm. Repetitive motion resulted in increased pain but no increased loss of ROM; individual finger strength was 4-5/5. X-rays of the right hand, right elbow and right shoulder were essentially unremarkable. The examiner diagnosed shell fragment wound to the right upper arm involving Muscle Group V, with residual pain in the right upper arm and right shoulder. The examiner also diagnosed numbness of the right hand, per the Veteran's report only and with no clinical evidence to support a diagnosis. The Veteran testified before the Board in December 2010 that his right arm is painful under stress and also painful in winter months. The arm is also partially numb on occasion. Lifting weight causes pain, which increases proportionately with the amount of weight being lifted. He also has decreased dexterity in performing activities that require fine motor skills, and his right hand continually feels cold. He had a nerve conduction study in the past but does not know the result. Review of the evidence above establishes that the Veteran had a through-and-through wound of the right upper arm that was treated in service for at least one week; also, he is clinically shown to have diminished strength compared to the left side. Accordingly, his muscle injury is at least "moderate" under the criteria of 38 C.F.R. § 4.56. However, the Board finds that the disability picture associated with the Veteran's injury more closely approximates "moderately severe." In that regard, the Board notes several factors. First, the injury is to the Veteran's dominant side, which causes increased occupational and recreational impairment. Second, the injury causes a degree of functional impairment to two joints, the shoulder and the elbow; while the loss of ROM of these joints is not within compensable limits under the applicable criteria of 38 C.F.R. § 4.71a, the Veteran has credibly reported pain to both joints that limits the functional capacity of those joints. Third, the Veteran is clinically shown to have reduced grip strength and some loss of sensation in the fingers of the right hand, and he credibly reports sensitivity to cold in the hand; while entitlement to separate compensation for peripheral nerve injury under 38 C.F.R. § 4.124a is not demonstrated, the Veteran's neurological impairment should equitably be considered in determining the residuals of his muscle injury. The Board has considered whether the Veteran is entitled to compensation for "severe" muscle injury, but finds his disability picture does not approximate such a rating. Absolutely none of the criteria for such a rating, as enumerated in 38 C.F.R. § 4.56, are shown either by medical documentation or by lay evidence. Further, because the criteria for rating higher than 30 percent were not shown during any distinct period on appeal, "staged" rating is not warranted. Hart, 21 Vet. App. 505. In sum, the Board has found the criteria for a schedular rating of 30 percent, but not more, are shown. The Veteran's appeal is granted to that extent. Benefit of the doubt on this issue has been resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b). Evaluation of a wound with lacerations of the liver and diaphragm The Veteran's musculoskeletal injury associated with the fragment wound to the liver and diaphragm is rated under the criteria of 38 C.F.R. § 4.73, DC 5319 (injuries to muscle group XIX), as follows. A rating of 0 percent is assigned for slight disability. A rating of 10 percent is assigned for moderate disability. A rating of 30 percent is assigned for moderately severe disability. A rating of 50 percent is assigned for severe disability. The definitions of "slight," "moderate," "moderately severe" and "severe" are found in 38 C.F.R. § 4.56, as cited above. STRs characterized the wound as laceration of the right diaphragm and right lobe of the liver consequent to penetrating chest wound. As noted above, the Veteran underwent exploratory laparotomy and suture repair of the right lobe of the liver and also underwent repair of the right diaphragm, all performed in Theater. When the Veteran was evacuated to Walter Reed Army Medical Center for follow-up treatment he was asymptomatic, with no recorded residuals. The Veteran had a VA examination in July 1970 that showed liver function tests as normal; respiratory examination to include chest X-ray was also grossly normal. However, a rating decision in October 1970 granted service connection for residuals of a fragment wound with lacerations of the liver and diaphragm, and assigned a 10 percent rating. The Veteran had a VA computed tomography (CT) scan of the chest in October 2006 that showed calcified plaque along the subpulmonic diaphragmatic surface with calcified lymph nodes, probably representing prior granulomatous disease (tuberculosis or fungal) but no active inflammation in this region. The impression was unremarkable CT chest. The Veteran's claim for increased rating was received in November 2006. The Veteran received VA treatment in December 2006 in conjunction with a new fracture of the tibia. Clinical examination at the time is silent for any dysfunction of the liver, although history of polysubstance abuse was noted. No respiratory impairment was noted, and in fact pulmonary examination was grossly normal (respiratory rate between 12 and 20 respirations per minute, respiratory pattern regular and with normal depth and symmetrical expansion, breath sounds clear and equal bilaterally, absence of cough or secretions and absence of dyspnea at rest and with exertion). The Veteran had a VA examination in February 2007, performed by an examiner who reviewed the claims file. The Veteran complained of problems related to an abdominal scar that was residual to surgery on the liver and diaphragm, but the examination report is silent in regard to active liver or respiratory problems. The examiner diagnosed shrapnel fragment lacerations to the liver and diaphragm, with no residuals (painful mid-abdominal scar was also diagnosed, but the scar is separately compensated and not on appeal). The Veteran was subsequently reexamined in February 2010, again by an examiner who reviewed the claims file. The Veteran denied having had any treatment for liver or respiratory problems since the last examination. He endorsed abdominal pain with certain activities but denied any residuals secondary to laceration of the liver or diaphragm. He denied any history of yellow jaundice, hepatitis or liver disease; he also denied any chronic respiratory problems such as emphysema or asthma. The Veteran stated his appetite was good; he denied any weight loss, nausea, vomiting, diarrhea or constipation. The Veteran did report residual abdominal pain in the left upper quadrant of the abdomen that became manifest 5-6 years earlier and was attributed by a physician to the fragment wound. The Veteran stated that bending forward, sitting up or shoveling snow produced abdominal pain of 6/10 severity; such flare-ups occurred daily and lasted until he ceased the activity. In regard to ADLs, the Veteran stated the abdominal pain caused problems bathing, toileting, dressing, cleaning, and sports/recreation. Occupational impairment consisted of increased difficulty carrying his photographic equipment. Clinical examination showed the Veteran to have normal respiration. The abdomen was tender to palpation only along the scar; there was no guarding or rebound. Review of laboratory analyses, to include recent analysis in January 2010, essentially showed normal liver function. Abdominal X-ray showed a 13-15 mm metallic fragment overlying the right mid-abdomen consistent with a bullet but without evidence of ileus obstruction. The examiner diagnosed shell fragment wound with laceration of the liver and penetration of the diaphragm, with no residuals. However, the examiner also diagnosed shell fragment wound involving Muscle Group XIX of the abdomen, which involves the abdominal wall and lateral bending of the spine, with residual abdominal pain. Finally, the examiner diagnosed retained shell fragment in the abdomen with residual abdominal pain. The Veteran testified before the Board in December 2010 that the retained shrapnel in his abdomen causes stabbing pain with activity; such pain is routinely 4-6/10 in severity but can flare to 8-9/10. He testified that his injury to the diaphragm has not caused pain, but he has experienced a continuing buildup of mucous in his throat that may or may not be related. On review of the evidence above, the Board finds the Veteran's disability more closely approximates a "moderate" level of impairment. No residual organic damage to the liver or the diaphragm is shown. The Veteran's primary complaint is subjective pain, which limits his general mobility and his level of occupational and recreational activity, and a continuing buildup of mucous in his throat that may or may not be related. However, such subjective complaints without evidence of functional impairment are adequately compensated by the current 10 percent evaluation. None of the criteria for "moderately severe" impairment as listed in 38 C.F.R. § 4.56 are shown by medical documentation or lay evidence. There are no orthopedic or neurological impairments to consider, and the Veteran's painful abdominal scar is separately compensated. In sum, the Board has found the criteria for a schedular rating higher than 10 percent are not shown under the applicable rating criteria. Further, because the criteria for rating higher than 10 percent were not shown during any distinct period on appeal, "staged" rating is not warranted. Hart, 21 Vet. App. 505. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, 274 F.3d 1361, 1364; Gilbert, 1 Vet. App. 49, 55-56. Evaluation of a fragment wound to the right thorax The Veteran's musculoskeletal injury associated with the fragment wound to the right thorax is rated under the criteria of 38 C.F.R. § 4.73, DC 5321 (injuries to muscle group XXI), as follows. A rating of 0 percent is assigned for slight disability. A rating of 10 percent is assigned for moderate disability. A rating of 20 percent is assigned for moderately severe or severe disability. The definitions of "slight," "moderate," "moderately severe" and "severe" are found in 38 C.F.R. § 4.56, as cited above. STRs characterized the wound as a penetrating wound of the right chest without artery or nerve involvement. As a result of this wound the Veteran also received lacerations of the right diaphragm, right lobe of the liver and right kidney, as well as hemopneumothorax. The Veteran had a VA examination in July 1970 that is silent in regard to any impairment associated with a chest wound. However, a rating decision in October 1970 granted service connection for residuals of a fragment wound to the right thorax and assigned a 10 percent rating. The Veteran had a VA chest X-ray in January 2006 that was essentially normal, but a subsequent chest X-ray in October 2006 showed a new irregular opacity in the lower left lung. Given the Veteran's history of a known primary malignancy, CT scan of the chest was recommended. The Veteran had a VA CT scan of the chest in October 2006 in which the lungs, bronchiovascular markings, mediastinum, bones and visualized abdominal structures were unremarkable. The overall impression was unremarkable CT chest. The Veteran's claim for increased rating was received in November 2006. The Veteran received VA treatment in December 2006 in conjunction with a new fracture of the tibia. Clinical examination at the time is silent for any dysfunction of the area of the chest. The Veteran had a VA examination in February 2007, performed by an examiner who reviewed the claims file. The examiner noted a number of scars related to the fragment exit wound and also related to remote surgery from drainage tubes, but no functional limitation of the chest was noted. The examiner diagnosed shrapnel fragment wound of the right thorax with residual scarring. The Veteran was subsequently reexamined in February 2010, again by an examiner who reviewed the claims file. The Veteran denied any treatment for his thorax since the previous examination. He denied history of respiratory illnesses, to include asthma or emphysema. Clinical examination showed the Veteran's chest to have normal configuration and to be clear to auscultation and percussion. Chest X-ray showed chronic obstructive pulmonary disease (COPD) and hyperinflation of both lungs. The examiner diagnosed shell fragment wound to the right thorax involving Muscle Group XXI, with no residuals. On review of the evidence above, the Board finds the Veteran's wound to the right thorax does not approximate a "moderately severe" level of impairment. Medical examination has shown no residuals other than scarring, which is separately compensated, and in fact the most recent examiner characterized the wound as having no residuals at all. The Veteran's lay evidence has cited no impairment of function associated with the chest wound, and none of the criteria for "moderately severe" injury under 38 C.F.R. § 4.56 are shown. In sum, the Board has found the criteria for a schedular rating higher than 10 percent are not shown under the applicable rating criteria. Further, because the criteria for rating higher than 10 percent were not shown during any distinct period on appeal, "staged" rating is not warranted. Hart, 21 Vet. App. 505. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, 274 F.3d 1361, 1364; Gilbert, 1 Vet. App. 49, 55-56. Schedular evaluation of a wound to the right kidney, with capsulotomy The Veteran's disability associated with the fragment wound to the right kidney is rated as a voiding dysfunction under the criteria of 38 C.F.R. § 4.115b, DC 7512. The criteria for a voiding dysfunction are rated on the basis of urine leakage, frequency or obstructive voiding, as follows. A rating of 0 percent is assigned for obstructed voiding with or without stricture disease requiring dilation 1 to 2 times per year. A rating of 10 percent is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any or combination of the following: (1) post-void residuals greater than 150 cc; (2) markedly diminished peak flow rate (less than 10 cc/sec.); (3) recurrent urinary tract infection secondary to obstruction; or, (4) voiding requiring periodic dilation every 2 to 3 months; or, for urinary frequency with daytime voiding interval between 2 and 3 hours or awakening to void 2 times per night. A rating of 20 percent is assigned for urinary frequency with daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night; or, for voiding dysfunction requiring the wearing of absorbent materials that must be changed less than 2 times per day. A rating of 30 percent is assigned for urinary retention requiring intermittent or continuous catheterization. A rating of 40 percent is assigned for urinary frequency with daytime voiding interval less than one hour, or wakening to void 5 or more times per night. Alternatively, a kidney (renal) disorder may be rated as a renal dysfunction, as follows. A rating of 0 percent is assigned for albumin and casts with history of acute nephritis; or, hypertension non-compensable under DC 7101. A rating of 30 percent is assigned for albumin consistent or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema; or, hypertension at least 10 percent disabling under DC 7101. A rating of 60 percent is assigned for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. A rating of 80 percent is assigned for persistent edema or albuminuria with BUN 40-80mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss or limitation of exertion. A rating of 100 percent is assigned for requirement of regular dialysis; or, precluding more than sedentary activity from one of the following: persistent edema or albuminuria; BUN more than 80mg%; creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. STRs characterized the wound as a penetrating wound with capsule of the right kidney. A capsulotomy of the right kidney was performed in service without apparent residuals other than hematuria. The Veteran had a VA examination in July 1970 in which excretory urogram shows no evidence of abnormality other than a shadow of metallic density overlying the inferior pole of the right kidney. However, urinalysis noted a trace of occult blood and an occasional red blood count (RBC). A rating decision in October 1970 granted service connection for hematuria residual to a fragment wound with lacerations of the right kidney, with capsulotomy, and assigned a 10 percent rating. The Veteran's claim for increased rating was received in November 2006. The Veteran received VA treatment in December 2006 in conjunction with a new fracture of the tibia. Clinical examination at the time is silent for any dysfunction of the kidneys; genitourinary remarks show the Veteran to be continent and urine to be clear. The Veteran was not hypertensive, and cardiovascular examination was normal (heart rate between 60 and 100 and regular, color pink without cyanosis, peripheral pulses present and equal bilaterally and no dependent edema). The Veteran had a VA examination in February 2007, performed by an examiner who reviewed the claims file. The Veteran denied hematuria since the original injury. No kidney problems were noted on examination. The examiner diagnosed shrapnel fragment wound to the right kidney with no current hematuria. The Veteran was subsequently reexamined in February 2010, again by an examiner who reviewed the claims file. The Veteran denied any treatment for kidney disorder since his last examination. He denied any fatigue, weakness, anorexia or weight loss related to the injury. He reported passing urine 4-5 times per day and once at night. He denied any hesitancy or dysuria and endorsed having a full stream. He denied any incontinence or use of pads or diapers; he also denied surgery of the urinary tract, history or urinary tract infections, kidney infections, kidney or bladder stones, or hospitalization for malignant neoplasms. He reported having had a recent urinalysis that showed trace blood and he endorsed impotence for the past 5-6 years, which was resolved with medication. Clinical examination showed the Veteran to be not hypertensive (pulse was 126/80 and pulse was 80 and regular). The examiner noted that routine urinalyses in January 2009 and January 2010 had revealed a trace of blood but were otherwise negative; urinalysis in February 2010 (a few days prior to examination) had been negative for blood and negative in general. Laboratory values were otherwise normal for kidney function. The examiner diagnosed shell fragment wound involving residuals of laceration of the right kidney, with residual hematuria and trace of blood on routine urinalysis. The Veteran testified before the Board in December 2010 that he continues to see intermittent hematuria. He awakens to urinate once or twice per night; during the day he urinates every 90 minutes, depending on the amount of fluid he has taken in. Review of the evidence above shows that prior to December 2010 the Veteran's urinary frequency was 4-5 per day and once per night, as recounted to the VA examiner in February 2010. The Veteran endorsed occasional hematuria, but hematuria is not a ratable symptom. No other kidney disease or dysfunction was shown to warrant evaluation under an alternative diagnostic code. However, during the Board hearing on December 8, 2010, the Veteran credibly testified to having daytime urination at 90-minute intervals. This is squarely within the criteria for a 20 percent rating under DC 7512. There continued to be trace hematuria but no other kidney disease of dysfunction. In the case of claims for an increased disability rating, the effective date assigned is generally the date of receipt of the claim, or the date the entitlement arose, whichever is later. 38 C.F.R. §§ 3.400(o)(1) and (2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). In this case, the entitlement arose after receipt of the claim for increased rating, so the higher rating is warranted as of that date. The Board has considered whether a rating higher than 20 percent may be assigned, but neither medical nor lay evidence shows the Veteran to have urinary retention to any degree (as required for a 30 percent evaluation), nor to have urinary frequency with daytime voiding interval less than one hour or wakening to void 5 or more times per night (as required for a 40 percent evaluation). The criteria for a rating higher than 10 percent were not met during any distinct period prior to December 8, 2010, or were the criteria for a rating higher than 20 percent met during any distinct period thereafter. "Staged rating" is accordingly not for application. Hart, 21 Vet. App. 505. The benefit of reasonable doubt on this issue has been resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b). Other considerations The Board has considered whether the Veteran's disabilities on appeal present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule. Accordingly, the assigned schedular evaluations are, therefore, adequate, and referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board has considered whether the record raises a claim for a total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in his testimony before the Board, the Veteran noted that he is currently self employed as a freelance photographer. He stated that since he is 62 years old, he could be drawing Social Security benefits but that he chooses to keep working and wants to continue working. He has not asserted that any of the service-connected disabilities on appeal, individually or in aggregate, render him unable to obtain or maintain gainful employment. The Board accordingly finds that a claim for TDIU is not raised by the rating issues presently on appeal. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for evaluations other than those assigned, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A rating of 30 percent for residuals of a fragment wound to the right upper arm is granted, subject to the criteria applicable to the payment of monetary benefits. A rating higher than 10 percent for residuals of a fragment wound with laceration of the liver and diaphragm is denied. A rating higher than 10 percent for residuals of a fragment wound to the right thorax is denied. A rating higher than 10 percent for residuals of a fragment wound to the right kidney with capsulotomy for the period prior to December 8, 2010 is denied. A rating of 20 percent for residuals of a fragment wound to the right kidney with capsulotomy is granted effective from December 8, 2010, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs