Citation Nr: 1334456 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 99-22 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 10 percent for scar residuals of a right posterior chest wall gunshot wound (GSW). 2. Entitlement to a rating in excess of 10 percent for muscle injury (Muscle Group (MG) XX) residuals of a right posterior chest wall GSW. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1967 until his retirement in June 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada that granted service connection for residuals of a right posterior chest wall GSW with fracture of the right 11th rib, rated 0 percent, effective July 1, 1997. The Veteran disagreed with the rating assigned. The case was before the Board in September 2003, when it was remanded for additional development. A February 2006 rating decision assigned a 10 percent rating for the residuals of the gunshot wound of the right posterior chest wall, effective July 1, 1997. In March 2008, August 2011 and March 2013, the case was remanded for additional development and/or to ensure due process. In March 2013 the Board also decided numerous other issues; therefore, this decision is limited to the issues stated on the preceding page. A June 2013 rating decision granted service connection and a 10 percent rating for muscle injury (sacrospinalis, erector) GSW residuals, effective July 1, 1997, and that rating has become part of the matter on appeal. [This appeal is processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of an electronic record.] FINDINGS OF FACT 1. The Veteran's GSW residual scar does not result in any functional limitation, and involves an area less than 77 square centimeters. 2. The Veteran's right posterior chest GSW residuals include what is reasonably shown to be moderately severe injury to the thoracic region MG XX.. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent is not warranted for scar residuals of a right posterior chest wall GSW. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes (Codes) 7804, 7805 (as in effect prior to August 30, 2002), 7801 (2013). 2. A 20 percent rating is warranted throughout for muscle injury (MG XX) residuals of the right posterior chest wall GSW. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5320 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This appeal is from initial ratings assigned with the award of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A February 2006 supplemental statement of the case (SSOC) and an October 2009 letter properly provided notice on the downstream issue of an increased initial rating. A June 2013 SSOC readjudicated the claims after further development was completed. It is not alleged that notice has been less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (when a claim has been substantiated, the Veteran bears the burden of demonstrating prejudice from defective notice with respect to downstream issues). The Veteran's service treatment records are associated with the record, and the RO has arranged for VA examinations. As is discussed in greater detail below, the examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Factual background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service treatment records show that he sustained a GSW to the right chest wall in May 1969. The wounds were debrided and he was sent to another hospital for further treatment. An examination demonstrated an open wound to the right posterior chest wall. Hemograms showed elevated white counts, and wound drainage showed strep. A chest X-ray was negative. A fracture of the right distal third of the 11th rib was noted. A delayed primary closure was done. Postoperatively, he spiked fevers, sutures were removed and the wound was left open for eventual granulation. The Veteran continued to have considerable pain in the right chest wall, probably secondary to the rib fracture. The diagnosis was right chest wall GSW. There was no nerve or artery involvement. The Veteran was hospitalized for 48 days, and discharged to duty with a 10 day profile. In a report of medical history in March 1997, the Veteran related he had a bullet and rib fragment removed from his right chest wall when he was 21. His skin was assessed to be abnormal on retirement examination in March 1997. There was a granulated scar on the right posterior flank secondary to a GSW. On January 1998 VA muscles examination it was noted that in 1969 the Veteran was struck by a bullet that entered his right posterior flank and became embedded in lateral right flank soft tissues. The wound was explored and debrided, and the bullet was retrieved. The wound healed with infection and left a pitted, deep scar which was somewhat tight when the Veteran bent in a certain direction, but was otherwise asymptomatic. An examination of the right posterior flank revealed an 8 cm. by 3 cm. scar, which was about 2.5 cm. in depth. There was obvious retraction of the underlying musculature. The wound was not tender, nor was the area. The impression was status post bullet wound of the right flank, with some loss of flank muscle and subcutaneous tissue. On VA joints examination of in November 2002, the examiner indicated that the GSW scar had not changed from the previous examination, and still showed some tenderness superiorly in the depressed scar at the lower rib margin. On VA examination in August 2005, it was noted that the bullet entered the right posterior chest wall close to the spine and injured a rib. The bullet lodged within the muscle of the right lower chest wall, but did not penetrate the lung or pleural space. The Veteran stated that the scar that is present is the scar from the surgery and not the scar of the bullet entry, as that scar seemed to have disappeared. The operative stitches had to be removed because the area became infected and was allowed to heal in by granulation. It eventually healed completely, but the area of the scar itself had never been completely comfortable. There was no tenderness superficially, but there was tenderness beneath the scar when any sort of pressure was applied. The Veteran indicated the scar did not become irritated, and there was no associated skin rash or skin breakdown. He said he has noticed that neither the visible scar itself nor the underlying tissue injury had caused any sort of restriction of motion of the trunk, back or right arm. With respect to the wound itself, there was no indication of any other system involvement. There was no pulmonary damage, and there was no indication of any nerve or vascular damage. There was some intermittent pain in the area, but it had not affected movement and had never prevented any daily living activities. The pain the Veteran experienced was localized aching which he associated with cool weather. Examination of the GSW surgical scar revealed that abnormalities were limited to an area over the very lowest rib on the right, slightly lateral to what would be considered midline from the spine to the right lateral chest wall. The area consisted of a tent-shaped scar, with each ascending limb 5 cm. in length with the vertical height at its center between 2.5-3 cm. and, at the apex, it was as much as 2 cm. deep. The other areas were approximately 1 cm. deep in contrast to the same area on the left. The entire area consisted of a scar of variable thickness, but it was thick, stringy, irregular and deep. The scar was not adherent to underlying tissues. There was no superficial tenderness, but there was moderate tenderness to deep pressure in the entire area of the scar. There was no skin breakdown, no instability of the scar and it was not restrictive in any way. The Veteran was able to freely move his right arm and extend it normally overhead. There was no evidence on palpation of any adhesions. There was no muscle herniation and there was no evidence at all of any loss of muscle function. The examiner commented this was far from the spine and any spinal restriction would more likely be due to the spinal conditions themselves. The Veteran did not claim any reduction in range of motion of any muscle group due to pain, fatigue, weakness or lack of endurance, even with repetitive use. There were no flare-ups of pain other than intermittent aching. X-rays of the ribs revealed no fractures, osseous lesions or foreign bodies. The pertinent impressions were GSW of the right lower chest wall involving the rib cage with scar, intermittent aching and tenderness to pressure, and thoracic muscle injury, MG XXI, without any functional loss or related symptoms from the muscle injury itself. The Veteran was again examined by the VA in October 2011. He reported he was shot in the left back in service, and that the bullet grazed his back, then entered and cracked a rib on the right, but did not pierce the lung. He reported flare-ups of pain, primarily over the right paravertebral muscles where the bullet entered his back. The examiner indicated the Veteran's scars were painful and/or unstable and/or of a total area greater than 39 square cm. On VA scars examination in November 2011 the Veteran related that his trunk scar was not really painful, but that a couple of times a week he felt cramping in that area, "deep inside my back." The scar was not unstable. It was on the posterior trunk, and there was loss of the underlying soft tissues of the right lumbar paravertebral muscles. It was described as a deep, non-linear scar, and measured 3x14 cm. The total area of the scar was approximately 42 square cm. The scar did not result in limitation of function. The examiner noted there was loss of soft tissue/muscle underneath the scar. The diagnosis was scar of the right paravertebral lumbar muscles. The examiner indicated the scar did not impact on the Veteran's ability to work. On VA muscles examination in May 2013 the examiner stated the Veteran had a penetrating muscle injury. The Veteran asserted he had no difficulty taking a deep breath. There were no paresthesias or limitation of motion. It was noted that MG XX was involved, and that the thoracic spine was affected. He did not have a history of extensive muscle hernia of any muscle. There was no evidence of fascial defects. The injury did not affect muscle substance or function. There was no loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination or uncertainty of movement. There was no muscle atrophy. The diagnosis was gunshot wound, right. The examiner commented the muscle injury did not impact on the Veteran's ability to work. It was further noted the Veteran had normal chest expansion and was able to rotate his body sideways without any difficulty. He complained of a pulling sensation on lateral flexion to the left, but there was no limitation of motion. The examiner noted flexion and extension at the thoracolumbar spine were slightly limited, but the Veteran had a known history of degenerative joint disease of the lumbosacral spine. [Lumbar spine arthritis is service-connected, and separately rated.]. On VA scars examination in May 2013, the history of the Veteran's right lower chest GSW in service was noted; it was noted that the wound was debrided and sutured, but t became infected and required further treatment. The original debridement included removal of a spicule of bone (from the right 11th rib). The Veteran reported muscle cramping in the region, deep inside. He reported he could not lift more than 25 pounds, and that bending over was uncomfortable. He reported occasional difficulty getting in and out of a car, but otherwise, there were no paresthesias, and he had no pain or difficulty breathing. The scar was not painful or unstable. The scar was on the posterior trunk. It was a tent-shaped, deep scar on the right lower posterior chest in the right mid-scapular line. It was described as deep and non-linear. It measured 10x3 cm. The total area involved was approximately 30 square cm. The diagnosis was GSW of the right chest. The examiner commented the Veteran had slight tenderness on pressure. There was no nerve damage. The examiner stated the scar did not impact on the Veteran's ability to work. It was difficult to obtain an exact measurement of the scar since there was overhanging skin. The depth at maximum adhesion was 1.5-1.75 cm. There was no sensory loss. Scar Residuals of GSW During the course of this appeal, VA issued new regulations for the evaluation of skin disabilities, effective August 30, 2002. See 67 Fed. Reg. 49590-49599 (July 31, 2002). Accordingly, the Board will review both the rating criteria in effect prior to August 30, 2002 and the criteria which became effective on that date to determine the proper evaluation for the Veteran's scars. However, the amended rating criteria may be applied only to periods beginning on and after the effective date of that regulatory change. See VAOPGCPREC 3-00. The Board notes that the criteria for rating scars were further revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Codes 7800 to 7805). However, because the Veteran's claim was filed before October 28, 2008, the claim will only be evaluated under the rating criteria prior to that date. See 73 Fed. Reg. 54,708 ("This amendment shall apply to all applications for benefits received by VA on or after October 23, 2008"). A 40 percent evaluation may be assigned for scars, not of the head, face, or neck, that are deep or that cause limited motion and cover an area or areas exceeding 144 square inches (929 sq. cm.). A 30 percent evaluation may be assigned for such scars covering an area of exceeding 72 square inches (465 sq. cm.). A 20 percent evaluation may be assigned for such scars covering an area exceeding 12 square inches (77 sq. cm.) A 10 percent evaluation may be assigned for such scars covering an area exceeding 6 square inches (39 sq. cm.) Note (2: A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7801) (as in effect prior to October 23, 2008). Under 38 C.F.R. § 4.118 as in effect prior to August 30, 2002, a 10 percent rating is assigned for scars, superficial, poorly nourished, with repeated ulceration. Code 7803. A 10 percent rating is also assigned for scars that are superficial, tender and painful on objective demonstration. Code 7804. Scars may alternatively be rated based on limitation of function of the part affected. 38 C.F.R. § 4.118, Code 7805 (as in effect prior to August 30, 2002). Under the regulations in effect prior to August 30, 2002, 10 percent was the maximum rating that could be assigned for a non-burn scar that did not involve the head, face or neck. The Board notes that a scar could also be rated based on limitation of motion of the part affected. There is no indication in the record that the Veteran's GSW residual/surgical scars resulted in any limitation of motion. On the August 2005 VA examination, it was specifically stated the scar was not restrictive in any manner. Similarly, the November 2011 and May 2013 VA examinations found no functional limitation from the scar. Thus, there is no basis on which a higher rating may be assigned under the regulatory criteria previously in effect. Regarding the regulations effective on August 30, 2002, the Board notes that the scar is properly characterized as deep. Thus, Code 7801 applies. The scar was approximately 24 square centimeters on the January 1998 VA examination. At that time, the scar was noted to be deep and there was retraction of the underlying musculature. As is noted above, the November 2002 VA examination found no change in the scar from the earlier examination. The maximum total area of the scar was 42 square cm. on the November 2011 VA examination, and 30 square cm. on the most recent VA examination. These findings are consistent with the criteria for the 10 percent rating currently assigned. To warrant a 20 percent rating, the area of scarring would have to exceed 77 square cm.; such is not shown. The Veteran is competent to report symptoms he experiences, to include pain and discomfort from the scar, and the Board finds him to be credible. However, his reports do not satisfy the schedular criteria for an increased rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for scar residuals of a GSW to the right posterior chest wall. Muscle Injury Rating Thoracic area MG XX sacrospinalis injuries [Function: Postural support of body; extension and lateral movements of spine.] are to be rated 40 percent, when severe; 20 percent, when moderately severe; and 10 percent, when moderate. 38 C.F.R. § 4.73, Code 5320. Regulations in effect prior to July 3, 1997 provided that in rating injuries of the musculoskeletal system, attention is first given to the deeper structures injured bones, joints, and nerves. A compound comminuted fracture, for example, with muscle damage from the missile, establishes severe muscle injury, and there may be additional disability from malunion of bone, ankylosis, etc. The location of foreign bodies may establish the extent of penetration and consequent damage. It may not be too readily assumed that only one muscle, or group of muscles is damaged. A through and through injury, with muscle damage, is always at least a moderate injury for each group of muscles damaged. This section is to be taken as establishing entitlement to a rating of severe grade when there is a history of compound comminuted fracture and definite muscle or tendon damage from the missile. There are locations, as in the wrist or over the tibia, where muscle damage might be minimal or damage to tendons might be repaired by suture; in such cases, the requirements for a severe rating are not necessarily met. 38 C.F.R. § 4.72 (as in effect prior to July 3, 1997). Muscle injuries are classified into four general categories; slight, moderate, moderately severe, and severe. Separate evaluations are assigned for the various degrees of disability. Residuals of gunshot and shell fragment wounds are evaluated on the basis of the following factors: the velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring, or loss of sensation. 38 C.F.R. § 4.56 (1997). A slight muscle injury contemplates: (1) Type of injury. Simple wound of muscle without debridement, infection or effects of laceration. (2) History and complaint. Service department record of wound of slight severity or relatively brief treatment and return to duty. Healing with good functional results. No consistent complaint of cardinal symptoms of muscle injury or painful residuals. (3) Objective findings. Minimum scar; slight, if any, evidence of fascial defect or of atrophy or of impaired tonus. No significant impairment of function and no retained foreign fragments. A moderate muscle injury contemplates: (1) Type of injury. Through and through or deep penetrating wounds of relatively short track by single bullet or small shell or shrapnel fragment are to be considered as of at least moderate degree. Absence of explosive effect of high velocity missile and of residuals of debridement or of prolonged infection. (2) History and complaint. Service department record or other sufficient evidence of hospitalization in service for treatment of wound. Record in the file of consistent complaint on record from first examination forward, of one or more of the cardinal symptoms of muscle wounds particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by injured muscles. (3) Objective findings. Entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative terms. (In such tests, the rule that with strong efforts, antagonistic muscles relax is to be applied to insure validity of tests.) A moderately severe muscle injury contemplates: (1) Type of injury. Through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. (2) History and complaint. Service department record or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of wound of severe grade. Record in the file of consistent complaint of cardinal symptoms of muscle wounds. Evidence of unemployability because of inability to keep up with work requirements is to be considered, if present. (3) Objective findings. Entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(c). A severe muscle injury contemplates the following: Type of injury. Through and through or deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or explosive effect of high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. (2) History and complaint. As under moderately severe (paragraph (c) of this section), in aggravated form. (3) Objective findings. Extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of missile. X-ray may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma and explosive effect of missile. Palpation shows moderate or extensive loss of deep fasciae or of muscle substance. Soft or flabby muscles in wound area. Muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. In electrical tests, reaction of degeneration is not present but a diminished excitability to faradic current compared with the sound side may be present. Visible or measured atrophy may or may not be present. Adaptive contraction of opposing group of muscles, if present, indicates severity. Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle, indicates the severe type. Atrophy of muscle groups not included in the track of the missile, particularly of the trapezius and serratus in wounds in the shoulder girdle (traumatic muscular dystrophy), and induration and atrophy of an entire muscle following simple piercing by a projectile (progressive sclerosing myositis) may be included in the severe group if there is sufficient evidence of severe disability. By regulatory amendment effective July 3, 1997, the schedular criteria for rating muscle injuries were revised, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 4.72. See 62 Fed. Reg. 30237-240 (1997). For instance, 38 C.F.R. §§ 4.55 and 4.72 were removed altogether. Under the new 38 C.F.R. § 4.56, governing the evaluation of muscle disabilities, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) 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. (d) Under Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. A slight muscle injury contemplates. (i) Type of injury. Simple wound of muscle without debridement or infection. (ii) 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 in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. A moderate muscle injury contemplates: (i) 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 high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined by paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. A moderately severe muscle injury contemplates: (i) 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. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) 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 muscle injury contemplates: (i) 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. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) 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. 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 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 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. (Authority: 38 U.S.C. 1155) [29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978; 62 FR 30235, June 3, 1997]. The revised rating criteria for muscle injuries are similar in content, if not organization, to the criteria previously in effect. For instance, a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. An open comminuted fracture with muscle or tendon damage will be treated as a severe injury of the muscle groups involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. The new criteria include such changes as the deletion of any reference to a history of unemployability as an indicator of or a prerequisite to a finding of a moderately severe injury and a deletion of the characterization of the requisite entrance and exit wounds as "large." 38 C.F.R. § 4.56(a), (b)). Regarding the Veteran's right posterior chest wall GSW injury (involving what the most recent examination identified to be MG XX), the Board notes the Veteran sustained a right chest wall GSW in May 1969. He fractured the right 11th rib. This was a deep penetrating or through and through wound, with healing slowed by infection; the Veteran was hospitalized for 48 days, and then placed on profile. The January 1998 VA examination found retraction of the underlying musculature; and the November 2011 VA examination found loss of right paravertebral muscle underlying soft tissue. While it was noted on the most recent VA examination, in May 2013, that the injury did not impact muscle substance or function, given the extent of the pathology noted immediately following the injury and the prolonged healing process, the Board finds it is reasonably shown that the muscle injury is moderately severe, warranting a 20 percent rating. See 38 C.F.R. § 4.3. The next higher (40 percent) rating requires severe muscle injury; such is not shown. The Board has considered whether these claims warrant referral for consideration of an extraschedular rating, and determined that all findings and functional impairment associated with the two service connected disabilities at issue are encompassed by the schedular criteria for the ratings assigned. Therefore, those criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board also notes that the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. On May 2013 VA examinations, examiners specifically indicated that these disabilities would not preclude gainful employment. ORDER A rating in excess of 10 percent for scar residuals of a right posterior chest wall GSW is denied. A 20 percent rating for MG XX injury residuals of a right posterior chest GSW is granted throughout, subject to regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs