Citation Nr: 1334955 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 06-03 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a compensable disability rating for residuals of a gunshot wound to the back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from March 1978 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case is presently under the jurisdiction of the Reno, Nevada RO. Based on a determination that new and material evidence had not been submitted, in a February 2008 decision the Board denied a petition to reopen a claim for service connection for lumbar disc disease, which was claimed as part of the service-connected residuals of a gunshot wound to the back. Therefore that claim is not in appellate status. The issue on appeal was previously remanded by the Board in February 2008, January 2010, September 2010, July 2012, and May 2013 to the agency of original jurisdiction (AOJ) for additional development. The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in April 2007. FINDING OF FACT Throughout the appeal period, the Veteran's residuals of a gunshot wound to the back are manifested by one scar on the right upper scapular area of the back measuring .9 by .9 centimeter, which was superficial, round-shaped, skin colored, smooth, was not painful or unstable, and did not result in disabling effects, functional impairment, or limitation of function of the affected part. CONCLUSION OF LAW The criteria for a compensable rating for residuals of a gunshot wound to the back have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 7800 to 7805 (2008), (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon 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. Letters dated in December 2004 (prior to the initial adjudication), March 2006, March 2008, and March 2009, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a July 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (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). The Veteran's service records, private and VA medical treatment records, and Social Security disability claim records, have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted and opinions obtained in February 2005, October 2010, January 2012, and June 2013. The reports included a review of the medical history of the Veteran's residuals of a gunshot wound to the back. In combination these examination reports provide a comprehensive and adequate evaluation of the Veteran's residuals of a gunshot wound to the back. The Veteran has not argued, and the record does not reflect, that these examinations and opinions are inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Applicable Law Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Evidence and Analysis The Veteran claims entitlement to a compensable disability rating for residuals of a gunshot wound to the back. During the pendency of this appeal the Veteran has asserted that his service-connected residuals of a gunshot wound to the back included musculoskeletal lumbar spine symptomatology. At an April 2007 video conference hearing, the Veteran testified that the residuals of a gunshot wound to his back received on July 4, 1978 in service included problems with movement involving the back affecting bending, walking, standing, sitting, and other daily activities involving the back. However, in a April 2005 rating decision, the RO addressed the underlying claim of service connection for lumbar disc disease as being related to the service-connected residuals of a gunshot wound to the back. The RO declined to reopen that claim on the basis that new and material evidence had not been submitted, because there was no competent evidence on file linking the lumbar spine disorder to the gunshot wound. The Veteran appealed from that decision and in a February 2008 decision the Board denied a petition to reopen the claim, and thereby denied the underlying claim for service connection for lumbar disk disease as associated with the service-connected residuals of a gunshot wound to the back. Review of the claims files does not otherwise show any evidence that gunshot wound residuals include any lumbar spine disorder symptomatology, nor any evidence that residuals of a gunshot wound to the back either caused or aggravated the Veteran's diagnosed lumbar spine disorder. This is the opinion of VA examiners during prior examinations in October 1998, September 2000, January 2003. Service treatment records show no records referable to the original gunshot wound injury to the back other than a radiographic report dated July 4, 1978. At that time X-ray examination of the chest was negative. During the September 2000 VA examination, the examiner made the following specific findings in addressing whether there was any specific lumbar spine/low back symptomatology due to the gunshot wound. X-ray examination of the lumbar spine was within normal limits, revealing no metallic fragments; and bony elements of the spine were normal with no fractures and no metallic foreign body. The impression included status post shotgun pellet injuries to the lumbar spine, the pellets having been removed, now without neurological or mechanical deficits. The examiner opined that there was no evidence of muscles having been either injured or destroyed as a result of the shotgun pellet, and it appeared that the shotgun pellets lodged in the subcutaneous tissues overlying the lumbar spine. There was no nerve or vascular destruction involved. The Veteran had full motion of the spine or muscle. There was no loss of strength or tissue; there were no incised wounds; muscle strength was normal; and there was no evidence of muscle herniation or loss of muscle function. The report of a February 2005 VA examination for scars shows that the Veteran reported that he acquired a shotgun wound in the upper and middle back. He reported complaints that he had pain in the spine but not in the skin. On examination, the examiner reported findings that there were no identifiable scars seen. The report concluded with a diagnosis of resolved scars. During an October 2010 VA examination for scars, the Veteran reported having a scar of the trunk due to a gunshot wound (buckshot) in 1978. He reported no skin breakdown over the scar and reported no pain associated with the scar. On examination the examiner was unable to find any scars on the site of the upper or lower back. The diagnosis was that no scars were seen. During a January 2012 examination for a thoracolumbar spine (back) condition, the examiner diagnosed the following as pertaining to the Veteran's thoracolumbar spine (back) condition: backache, not otherwise specified; gout; and degeneration of intervertebral disc. The examiner opined that these conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. As basis for that opinion, the examiner noted that the physical findings showed that the Veteran had sustained a penetrating superficial shotgun injury to the posterior aspect of the right upper scapula; and there were no significant injuries to the mid or lower back, i.e., the thoracolumbar area that required treatment. Also, the Veteran's present thoracolumbar condition is due to degenerative lumbar disc protrusions causing low back pain and radiation, which is most likely due to multiple conditions including long-standing uncontrolled gout and obesity. The examiner further opined that the residuals from a gunshot wound to the back as noted by the physical scar on the right upper scapular area, is less likely as not (less than 50 percent probability) connected to the Veteran's present back condition, or began in service or is related to disease or injury in service or manifested within the first year following service. During a June 2013 VA examination for scars, the examiner reviewed the claims files and examined the Veteran, and found that the Veteran had a scar of the right upper back. The Veteran had no scars or disfigurement of the head, face, or neck. The Veteran reported a history that his scar resulted from a gunshot wound to the right upper back on July 4, 1978 when the Veteran was hit by a buck shot and a pellet was imbedded in the right upper back on the superior border of the right scapula, which he removed himself. The wound healed without complications. The Veteran reported that he has had to manually squeeze out bloody pus/discharge from the scar every few months due to swelling and pain. The scar then becomes asymptomatic for a long while. The Veteran denied any other problems/symptoms or limitations associated with the scar. The report contains further medical history that the scar was not painful, or unstable with frequent loss of covering of skin over the scar, and was not due to burns. On examination, the examiner found that the scar involved the right upper back. It was superficial and non-linear, and measured .9 by .9 centimeter. It did not affect the right upper extremity. The report indicates that there was no disfigurement of the head, face, or neck; and the scar did not result in limitation of function. The examiner described the gunshot wound scar in the right upper back as round-shaped, skin colored, smooth, mobile, and superficial. Immediately medial to the scar was an epidermal inclusion cyst with central punctum that was round-shaped, flat, hyperpigmented, and non-tender. About a third of the cyst was superimposed on the identified gunshot wound scar. The examiner found that there was no noted functional impairment associated with the scar including the upper extremities and the scapula; and there was no impact on his ability to work. The RO has evaluated the Veteran's residuals of a gunshot wound to the back as zero percent disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. The criteria for rating scars under Diagnostic Codes 7800-7805 were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008. 73 Fed. Reg. 54,710 -12 (Sept. 23, 2008). As to claims filed before October 23, 2008, on January 20, 2012, 38 C.F.R. § 4.118 was revised to clarify that a veteran whose scars were rated by VA under Diagnostic Codes 7800-7805 in effect prior to October 23, 2008, may request review under the revised Diagnostic Codes. 77 Fed. Reg. 2909 (January 20, 2012). In this case, in supplemental statements of the case during the appeal, the RO has variously applied both the old and revised rating criteria. Scars that are not located on the head, face, or neck are evaluated according to Diagnostic Codes 7801-7805. 38 C.F.R. § 4.118. Prior to the revision effective October 23, 2008, Diagnostic Code 7801 provided ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. 38 C.F.R. § 4.118 (2008). Under the revised criteria of Diagnostic Code 7801, burn scars or scars due to other causes, not of the head face, or neck, that are deep and nonlinear, with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. 38 C.F.R. § 4.118 (2012). Prior to the revision effective October 23, 2008, Diagnostic Code 7802 provided ratings for scars, other than the head, face, or neck, that were superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. 38 C.F.R. § 4.118 (2008). Under the criteria of revised Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, and that involve an area of 144 square inches (929 sq. cm.) or greater, warrant a 10 percent rating. 38 C.F.R. § 4.118 (2013). Prior to the revision effective October 23, 2008, Diagnostic Code 7803 provided a 10 percent rating for superficial unstable scars. 38 C.F.R. § 4.118 (2008). The October 2008 revision eliminated Diagnostic Code 7803. (2008). Diagnostic Code 7804 provided a 10 percent rating for superficial scars that are painful on examination. 38 C.F.R. § 4.118 (2008). Under the criteria of revised Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118 (2013). Prior to the revision effective October 23, 2008, Diagnostic Code 7805 provided that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118 (2008). Under the criteria of revised Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118 (2013). If the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, then a zero percent evaluation shall be assigned if the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Given the evidence discussed above showing there is no limitation of function of the affected part due to impairment associated with the scar, a compensable rating is not warranted under Diagnostic Code 7805 under either version of the regulation. The Veteran asserts that the low back symptomatology of his thoracolumbar condition including degenerative lumbar disc protrusions, is associated with the gunshot wound scar located at the right upper back on the superior border of the right scapula. The Board finds, however, that the reports of the VA examinations are internally consistent and the objective findings are more probative than the Veteran's description of a scar and associated limitation of function. Further, during the June 2013 VA examination the examiner also found an epidermal inclusion cyst with central punctum, shown in proximity to the service-connected scar of the back. The Veteran at that time asserted that the cyst was chronic and etiologically associated with the service-connected scar. The objective evidence, however, does not show that this cyst is associated etiologically or in any other way with the service-connected scar except for its anatomic proximity with the scar on the back at the time of the June 2013 VA examination. There is no objective evidence that the cyst was a chronic condition related to the service-connected scar. There is no objective evidence that the service-connected scar is deep (associated with underlying soft tissue damage), causes limited motion, or constitutes an area of at least six square inches. Therefore, a compensable evaluation under Diagnostic Code 7801 under either version of the regulation is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008), (2013). There is no objective evidence that the service-connected scar is superficial and nonlinear, and constitutes an area of 144 square inches or greater. Therefore, a compensable evaluation under Diagnostic Code 7802 under either version of the regulation is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008), (2013). Finally, there is no objective evidence that the service-connected scar is unstable or painful. Therefore, a compensable evaluation under Diagnostic Code 7804 under either version of the regulation or under Diagnostic code 7803 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7803 (2008); 7804 (2008), (2013). As the Veteran has not met the criteria for an increase in rating at any time, staged ratings are not warranted. An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not described any unusual or exceptional features associated with his residuals of a gunshot wound to the back, which consist of the scar as described above. The rating criteria are adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. A total disability rating based on individual unemployability (TDIU) is a part of a claim for a higher initial rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim 'identify the benefit sought' has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has made no explicit claim that due to his service-connected scar, which constitutes the residuals of a gunshot wound to the back, he is unemployable. The record does not show that he is unable to secure or follow a substantially gainful occupation as a result of the residual scar of his back. As of the time of the recent VA examination in June 2013, the examiner recorded an opinion that the Veteran's service connected scar did not result in any limitation of function. There is no evidence to suggest that the service-connected scar would impair the Veteran's ability to work. As such, the Board finds that a claim for TDIU is not raised by the record. The preponderance of the evidence is against the grant of a compensable schedular rating for residuals of a gunshot wound to the back; there is no doubt to be resolved; and an increased disability rating is not warranted. ORDER A compensable disability rating for residuals of a gunshot wound to the back is denied. ____________________________________________ M. G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs