Citation Nr: 1336562 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-35 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to an increased rating for a gunshot wound to the right arm with carpal tunnel syndrome, rated as 30 percent disabling prior to August 23, 2012, and rated 40 percent disabling thereafter. . REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from October 1967 to October 1969. The Veteran was awarded the Purple Heart among other decorations. This matter came to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in April 2011 for further development. A review of the record shows that the RO has complied with all remand instructions by contacting the Veteran for contact information of his medical providers, affording the Veteran a VA examination and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). In the February 2008 rating decision, the RO denied an increased rating in excess of 30 percent. The Veteran appealed and by rating decision in August 2012, the RO granted the maximum rating of 40, effective August 23, 2012. Although an increased rating has been granted from August 23, 2012, the increased rating issue prior to August 23, 2012 remains in appellate status, as the maximum schedular rating has not been assigned. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a decision review officer (DRO) informal conference hearing in March 2009 and hearing before the Board at the RO (Travel Board) in February 2011. The informal hearing report and Travel Board hearing transcript are of record. Even though Veteran testified before the undersigned at a February 2011 Travel Board hearing, in correspondence received in September 2013, the Veteran specifically requested another Travel Board hearing. In October 2013, the Veteran was informed that pursuant to 38 C.F.R. § 20.700(a) that he had the right to one hearing on appeal if he expressed a desire to appear in person. He was further informed that since his initial request was granted and fulfilled by the Board, he did not currently have the right to an additional hearing. As a result, his request was denied. The issue of entitlement to service connection for cardio-heart disorder, to include as due to herbicide exposure, has been raised by the Veteran in a statement received in August 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, and is not otherwise related to such service. 2. Prior to August 23, 2012, the Veteran's service-connected gunshot wound to the right arm with carpal tunnel syndrome was manifested by moderately severe symptoms. 3. From August 23, 2012, the Veteran's service-connected gunshot wound to the right arm with carpal tunnel syndrome is manifested by severe symptoms, but did not result in an unusual or exceptional disability picture. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for entitlement to a disability evaluation in excess of 30 percent, prior to August 23, 2012, for the Veteran's service-connected gunshot wound to the right arm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.73 and Code 5305 (2013). 3. The criteria for entitlement to a disability evaluation in excess of 40 percent, from August 23, 2012, for the Veteran's service-connected gunshot wound to the right arm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.73 and Code 5305 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, 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. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in September 2007. The RO provided the appellant with notice in May 2008, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the May 2008 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a September 2008 statement of the case and March 2010 supplemental statement of the case, following the provision of notice in May 2008. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, private and VA treatment records; reviewed the Veteran's Virtual VA file and VBMS file; assisted the Veteran in obtaining evidence; afforded the Veteran VA examinations; obtained a September 2012 addendum opinion for hearing loss; and afforded the Veteran the opportunity to give testimony at a DRO informal conference hearing and Travel Board hearing. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. I. Service Connection Laws and Regulations One of the issues before the Board involves a claim of entitlement to service connection for hearing loss. The Veteran asserts that as an infantryman in service, the in-service noise exposure lead to his hearing loss. The Veteran's DD 214 reflects that he was awarded the Purple Heart Medal and Sharpshooter (Rifle) award. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss (organic disease of the nervous system) may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). When the requirements for a chronic disease shown in service (or within the presumptive period under 38 C.F.R. § 3.307), then all subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Walker v. Shinseki, 708 F. 3d 1331, 1335 (2013). If evidence of a chronic conditions noted during service or during the presumptive period, but chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation of the chronic disease. Id. at 1336. To be "shown in service," the disease identity must be established and the diagnosis not be subject to legitimate question. Id. at 1335. If the VA determines that the veteran did engage in combat, the provisions of 38 U.S.C.A. § 1154(b) will be applicable, and a veteran's assertions regarding the combat-related disability are accepted despite the lack of supporting documentation in service treatment records. However, evidence establishing a casual nexus between an in-service event and his current disability must be submitted. See Kessel v. West, 13 Vet. App. 9 (1999). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Factual Background Service treatment records are silent for complaints, diagnosis and treatment for hearing loss. On the authorized entrance audiological evaluation in August 1967, pure tone thresholds, in decibels, were as follows (when converted from American Standards Association (ASA) units to International Standards Organization (ISO) units) : HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 15 10 10 LEFT 20 10 10 10 25 On the authorized audiological evaluation in August 1969, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 -- 0 LEFT 5 0 5 -- 5 On both entrance and August 1969 examinations, clinical evaluation of the ears was normal and no hearing loss was noted. In his contemporaneous medical histories, the Veteran checked the appropriate boxes to deny ear trouble and hearing loss, but did confirm other unrelated disorders. In an October 1969 form, the Veteran marked the appropriate box to indicate no change in his medical condition since the August 1969 separation examination. Post service, a December 2008 VA examination shows that post service, the Veteran worked as a glass installer and operated a chainsaw, but did use hearing protection. On the authorized audiological evaluation in December 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 60 70 LEFT 20 20 40 60 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 in the left ear. The examiner diagnosed mild to severe sensorineural hearing loss bilaterally. The examiner stated that he could not render an opinion without resorting to mere speculation and noted that the claims file was not available for review. At the February 2011 Travel Board hearing, the Veteran testified to firing artillery rounds and not wearing hearing protection while in service. Post service, he worked installing glass for storefronts and windows and wore hearing protection then. The Veteran stated he sought treatment for hearing loss in 2009. On the authorized audiological evaluation in May 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 65 65 75 LEFT 25 30 50 65 75 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 90 in the left ear. The examiner diagnosed normal to severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. The examiner opined that hearing loss is less likely as not incurred as a result of noise exposure during military service. The examiner cited normal entrance and exit audiograms and noted that literature does not support delayed onset of hearing loss after noise exposure. A September 2012 addendum opinion shows that another examiner provided a negative nexus opinion and noted no decrease in hearing while on active duty to indicate any damage to the auditory system. She noted actual improvement in hearing while in service. She stated that hearing loss does exist for VA purposes and noise exposure was reported, but there is no nexus linking the hearing loss to noise exposure. A shift in hearing would be a nexus and there is no shift but improvement while on active duty. She noted that research does not support the late onset of noise-induced hearing loss. She stated that if no damage occurs from noise at the time of noise exposure, damage is not going to occur because of that noise at a later date. She stated that evidence indicated that no damage occurred to the Veteran's hearing while on active duty. Analysis Overall, post service treatment records reflect that the Veteran's hearing loss currently meets the regulatory thresholds to be considered disabling. When the Veteran was afforded audiological examinations, audiometric testing revealed auditory thresholds of greater than 40 decibels for some of the relevant frequencies bilaterally. Additionally, the speech recognition score using the Maryland CNC Test was less than 94 percent in the left ear. However, the Veteran's hearing loss is not related to his service. Service treatment records are silent for any complaints, treatment for or diagnosis of hearing loss. Compared to the entrance audiological evaluation in August 1967, the August 1969 exit evaluation showed improvement in hearing. While the Veteran is competent to report his symptoms, he did not report or seek treatment for hearing loss as he did for other disorders in service. If the Veteran did in fact have hearing loss in service, one would expect the Veteran to report such upon separation from service in a report of medical history as he had with the mumps. Instead, the Veteran explicitly denied a past/current history of hearing loss. In addition, medical personnel at the time found that clinical evaluation of the Veteran's ears was normal and did not note hearing loss after audiometric testing. Significantly, audiometric testing showed improvement since entrance into service. There is no competent medical evidence showing otherwise. Although the Veteran's service treatment records do not contain any documentation of any hearing loss during service, the VA has determined that the Veteran did engage in combat by virtue of his Purple Heart award. However, the provisions of 38 U.S.C.A. § 1154(b) are not applicable since the Veteran is not asserting that his hearing loss is combat-related. In addition, even when considering the Veteran's reports of in-service noise exposure, two examiners rendered negative nexus opinions. Based on interview and examination of the Veteran, review of the claims file, and consideration of medical literature regarding hearing loss and noise exposure, the examiners did not link the Veteran's in-service noise exposure to service. The Board notes that there is no competent opinion to the contrary. While not determinative by itself, it is also significant that there is no evidence of hearing loss until December 2008, which is 39 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the one year presumption of service incurrence is not for application. And since sensorineural hearing loss was not shown in service (or within the presumptive period under 38 C.F.R. § 3.307), service connection pursuant to Walker is not warranted. See Walker, 708 F. 3d 1331. The Board acknowledges the Veteran's assertion that he has hearing loss related to in-service noise exposure. While the Veteran is competent to testify as to his symptoms, he is not competent to render a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's service connection claim for hearing loss. II. Increased Rating Laws and Regulations The present appeal also involves the Veteran's claim that the severity of his service-connected gunshot wound to the right arm warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Diagnostic Codes 5301 to 5309 provide the criteria for rating muscle injures affecting the shoulder, girdle and arm. The Veteran's service-connected gunshot wound to the right arm has been rated by the RO under the provisions of Diagnostic Code 5305 for Group V. Function: Elbow supination (1) (long head of biceps is stabilizer of shoulder joint); flexion of elbow (1,2,3). Flexor muscles of elbow (1) Biceps; (2) brachialis; (3) brachioradialis. Since the Veteran is right hand dominant, ratings for the dominant arm will be considered and are as follows: a 30 percent is warranted for moderately severe disability. A maximum rating of 40 percent is warranted for severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5305. The most recent VA examination shows that Group VI is also affected. Under Diagnostic Code 5306 for Group VI: Function: Extension of elbow (long head of triceps is stabilizer of shoulder joint). Extensor muscles of the elbow: (1) Triceps; (2) anconeus. For the dominant arm, a rating of 30 percent is warranted for moderately severe disability. And a maximum rating of 40 percent is warranted for severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5306. 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, the evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). A through-and-through injury with muscle damage shall be evaluated as no less than a 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(c). Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows. For purposes of this claim, the regulation provides in pertinent part: (3) Moderately severe disability of muscles-(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 intramuscular 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. 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 the sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles-(1) 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, intramuscular 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 facia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Test of strength, endurance and 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 intramuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration of atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.57 (d). Normal range of motion of the shoulder is as follows: 180 degrees of flexion, 180 degrees of abduction, and 90 degrees of internal and external rotation. Normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. Normal range of motion of the forearm is 80 degrees of pronation and 85 degrees of supination. See 38 C.F.R. § 4.71, Plate I. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Factual Background Service treatment records show that the Veteran was admitted in August 1968 for a gunshot wound to the right arm sustained in Vietnam with right median/radial nerve paresis. It was noted that there was steady improvement. He was discharged in December 1968. An August 1969 surgical clinic record shows complaints of right arm numbness. The provisional diagnosis was old nerve injuries of the radial and median nerves. The Veteran was referred to the orthopedic clinic. An August 1969 service treatment record shows radial median nerve injuries. The Veteran had complaints of numbness in the right hand and all fingers, and aches in the right arm. Another August 1969 treatment record shows that a detailed muscle examination, radial, median and ulnar showed no significant weakness of intrinsic or extrinsic musculature. There was ill-defined radial nerve numbness to pinprick, and subjective numbness and weakness of hand. It was observed that the Veteran had nearly full recovery of any nerve injury. Post service, the Veteran was afforded a VA examination in January 1971. The narrative history provided that the missile entered through the biceps muscle and exited through the extensor surface of the upper arm. The Veteran stated that no bony fractures were incurred, but he did suffer some nerve and muscle damage. At the time of the examination, he complained of sharp pains in the entire extremity below the scar, and perspiration, intermittent tingling, and weakness in the right hand. The examiner noted that review of scanty service records show that the Veteran sustained radial and median nerve injuries. However, there were no details available to indicate what type of surgery was done following the incident. The examiner noted that the Veteran has made fairly good recovery from the injuries and noted that the Veteran was a full-time employed glass mechanic. Upon examination there was a 5" linear, vertical, well healed, non-tender, slightly disfiguring scar on the anterior medial aspect of the upper arm. There was also a 4 1/2" linear, disfiguring, non-tender, well healed scar on the extensor surface of the right upper arm with evidence of loss of muscle substance along its locus. The right upper arm is 1/2" narrower in circumference that the left. The other pertinent finding is a slight weakness of grip strength of the right hand. However, the examiner found no limitation of normal range of motion of the right upper extremity of the elbow joint, wrist or other joints distal at the wrist. There were no muscular atrophies of the intrinsic muscles of the right hand. There were good radial pulsations noted on palpating the right radial artery. On testing, the sensory modalities of the right upper extremity, no sensory defects were noted. Pinprick, vibration sense, pulsation sense, and tactile sensation were intact. Wrist dorsiflexion and palmar flexion as well as wrist, radial and ulnar deviation were normal on comparative basis with range of motion noted on the left. There was only significant functional deficit noted was that of mild weakness of the right hand on griping. There was also a slight increase of sweating of the palm of the right hand. The remainder of the musculoskeletal system was normal. The examiner diagnosed status following gunshot wound to the right upper arm with residual disfiguring scars, with some mild diminution of grip strength of right hand, and with some subjective complaints as described in the narrative history. An October 2007 VA examination shows that the Veteran underwent surgery at the time he was wounded. The nerve damage in his right arm was documented in nerve conduction studies. Surgery was considered, but not subsequently carried out. The Veteran underwent physical therapy and did make an initial recovery. He stated never being given any profiles and was honorably discharged from service. In retrospect, he reported not recovering full strength in his right arm. It was noted that at the time, he was employed as a businessman and in the past had been employed as an installer and manager. He reported lifting maximum of 20 pounds with his right arm and dropped objects frequently. He reported flare-ups (which were basically activity related) characterized by increased numbness and weakness particularly in his right hand. He had difficulty grabbing and decreased ability to use his right arm. He could type a maximum of one half hour. He did not use any type of brace or assistive devices. He reported that the major problem is "easy fatigability". He was not taking medication or receiving any therapy for his arm. At the time, he was being treated by his private doctor. Physical examination shows scars in the right bicep measuring 11 cm in length by 5 mm in width. There is also a scar in the right bicep measuring 8 cm in length by 5 mm in width. The examiner noted muscle loss in the right bicep measuring approximately 5 mm in depth by 11 cm in length and in the triceps area a triangular muscular defect measuring 1 cm in deep. Each leg of the triangle measured 2 cm. Muscle strength was 4/5 (less than normal strength) in flexion of the right elbow and 3+/5 (no movement against resistance) in extension of the right elbow. Grip strength of the right hand was decreased and there was weakness in both dorsi and palmar flexion of the right wrist. Sensation was decreased over the lateral aspect of the right hand and forearm. There was normal range of motion of elbow, wrist and hand on the right side with no decrease on repetitive activity. The arm was otherwise normal to inspection with the exception of the defects documented above. The examiner diagnosed gunshot wound of the right upper arm. A June 2008 VA examination notes that following the gunshot incident, the Veteran was evaluated, treated in a field hospital and underwent surgery. He did not experience any fracture or bony involvement of the right upper arm, but experienced a slow prolonged recovery. He was subsequently hospitalized at Walter Reed and continued carrying out light duty in service. He was given an honorable discharge and no medical rating at the time. He has experienced worsening of his right arm problems over the past few years. After service, he sought private care in 1970. He was told at Walter Reed that he had a nerve injury. Surgery was contemplated but never carried out and the Veteran believes that he recovered from this aspect of his injury. At the time of the examination, he complained of no severe right arm pain but experienced "jumps and quivers". He reported an aching sensation that is basically activity-related. He felt that his right arm is weak. At the time of the examination, he was employed in the field of management. His right arm did not limit him at work, but in his daily living. He could no longer carry out any heavy lifting. He experienced flare-ups related to cold weather. They caused his arm to ache, but did not cause any additional limitation. Upon physical examination, it was noted that the muscle groups involved included both biceps and triceps groups 5 and 6 of the right upper arm. The bulk of the biceps muscle was decreased to inspection. Strength at the elbow in both flexion and extension was 4/5 (less than normal strength). There was no muscle herniation noted. Grip strength was slightly decreased in the right hand but sensation appeared normal. The examiner noted that the first linear scar in the right biceps area (that measured 10 cm x 5 mm) was nontender and nonadherent. Texture appeared normal and there was no ulceration. He stated that it was depressed with underlying tissue loss as documented in the muscle examination. He noted no inflammation, edema or keloid formation. He noted that the scar was hypopigmented and without induration, inflexibility, limitation of motion/function. As for the second scar, that appeared to be an exit wound scar, it was oval and irregular in shape. It was nontender, nonadherent of normal texture and without ulceration. It was depressed as documented in muscle examination with underlying tissue loss. There was no inflammation, edema or keloid formation. The scar was hypopigmented. There was no induration or inflexibility, no limitation of motion or of function caused directly by the scar. An October 2009 VA treatment record notes a history of a gunshot wound at the right upper extremity (through bicep and triceps) with numbness and weakness of entire right upper extremity at the time. Numbness dissipated over several years due to normal sensation, but weakness persisted. Six months prior, he began to have numbness of the right palm and last 4 digits of his right hand. He was unsure of whether there was numbness in his right thumb. Symptoms are worse in the morning. He occasionally drops keys and small objects with the right hand, but had no problems with dexterity (shoelaces, eating utensils and buttons). Motor strength was full for right deltoids and interossei and 4/5 (less than normal strength) for right bicep, triceps, grip. Sensory examination shows diminished sensation to light touch at all 5 digits of the right hand as well as palmar aspect of right hand to wrist. There was one area of diminished sensation of right triceps at location of scar from injury. The assessment shows that since his right upper extremity is functional for his needs, he has no progressive weakness of his right upper extremity and no evidence of myelopathy on clinical examination. Surgery was optional and based upon his symptoms. An October 2009 addendum shows that the Veteran did not desire surgical intervention. He was advised to contact neurosurgery service if symptoms worsened or delivered new symptoms. At the February 2011 Travel Board hearing, the Veteran testified to numbness in the fingers, loss of strength in his arm, and tingling from his upper arm all the way down to his hand. An August 23, 2012 VA examination shows that Group V (flexor muscles of elbow: biceps, brachialis, brachioradialis-flexion of the elbow) and Group VI (extensor of the muscles of elbow: triceps-extension of elbow) were affected. The examiner noted ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. The examiner also noted that the muscle injuries continued to some impairment of muscle tonus, some loss of muscle substance, flabby muscles in wound area and visible/measurable atrophy. The Veteran had consistent loss of power in Muscle Group V. The examiner did not check the appropriate boxes to indicate weakness, lowered threshold of fatigue, fatigue-pain and impairment of coordination. He did indicate occasional uncertainty of movement in Muscle Groups V to VI. Muscle strength testing showed 5/5 (normal strength) in shoulder abduction (Group III), and wrist extension (Group VIII). There was less than normal strength in elbow flexion (Group V), elbow extension (Group VI), wrist flexion (Group VII). The examiner noted muscle atrophy in Group VI. The Veteran did not use any assistive devices. Analysis A. Prior to August 23, 2012 The Board fidns that prior to August 23, 2012, the maximum rating of 40 percent is not warranted. The Veteran did not use assistive devices. His disability did not affect his ability to work as a businessman, manager and glass installer. There was no evidence of ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation did not show loss of deep facia or muscle substance, or soft flabby muscles in wound area. There was also no evidence of muscles that did swell and harden abnormally in contraction. Test of strength, endurance and coordinated movements compared with the corresponding muscles of the uninjured side did not indicate severe impairment of function. The Board notes that muscle strength was less than normal. There were no findings of strength in the right arm ranging from 0/5 to 3/5. In other words, there were no findings of any of the following: no muscle movement, visible muscle movement (but no joint movement), or no movement against gravity or no movement against resistance. Here, the most severe finding of the arm was "less than normal strength." At most, the Veteran complained of weakness. He was able to lift a maximum of 20 pounds. There was also no x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of the missile. There was no evidence of adhesion of scar to one of the long bones, scapular, 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. Further, there was no diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. There was also no visible or measurable atrophy, adaptive contraction of an opposing group of muscles, and atrophy of muscle groups not in track of the missile (particularly of the trapezius and serratus in wounds of the shoulder girdle). There was also no evidence of induration of atrophy of an entire muscle following simple piercing by a projectile. As noted in treatment records, the Veteran was initially treated with surgery after being shot. No further surgery and physical therapy was required as the Veteran made a fairly good recovery and the Veteran was able to return to service on light duty. At most, the Veteran complained of numbness, weakness and tingling in the right arm. His grip strength was slightly decreased and the Veteran found himself dropping things. Further surgery had been considered, but the Veteran had declined, which indicates to the Board that the gunshot wound was not severe. Additionally, the Veteran denied severe pain. The Veteran is competent to report his symptoms and the symptoms he has reported prior to August 23, 2012 do not nearly approximate a rating of 40 percent. Even when considering other applicable diagnostic codes of the shoulders, there was no ankylosis of the scapulohumeral articulation to warrant a higher rating under Diagnostic Code 5200. 38 C.F.R. § 4.71a, Diagnostic Code 5200. There was also no medical evidence of limitation of motion to 25 degrees to warrant a maximum rating under Diagnostic Code 5201. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Here, the Veteran did not complain of limitation of motion of the right arm; and the October 2007 VA examination noted the arm was otherwise normal to inspection with the exception of defects noted in the examination report (which the Board notes did not include limitation of motion of the arm). There is also no evidence of fibrous union of the humerus, non union of the humerus or loss of head of the humerus to warrant 50, 60 or 80 percent ratings, respectively, under Diagnostic Code 5202. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Moreover, Diagnostic Code 5203 for impairment of clavicle or scapula is not of application since the highest available rating is 20 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5203. Overall, the preponderance of the evidence is against the claim for evaluation in excess of 30 percent for gunshot wound to the right arm prior to August 23, 2012. B. From August 23, 2012 From August 23, 2012, the Veteran has been awarded the highest available rating for Muscle Groups V and VI under Diagnostic Codes 5305 and 5306, respectively. 38 C.F.R. § 4.73. Even when considering the remaining Diagnostic Codes applicable to the shoulder girdle and arm, the highest available rating (with the exception of Muscle Group IV) is 40 percent. Id. And the highest available rating for Muscle Group IV is 30 percent under Diagnostic Code 5304. Id. Thus, entitlement to an increased rating in excess of 40 percent from August 23, 2012 is not warranted. Even when considering other applicable diagnostic codes of the shoulders, there is no ankylosis of the scapulohumeral articulation to warrant a maximum rating of 50 percent under Diagnostic Code 5200. 38 C.F.R. § 4.71a, Diagnostic Code 5200. There is also no evidence of fibrous union of the humerus, non union of the humerus or loss of head of the humerus to warrant 50, 60 or 80 percent ratings, respectively, under Diagnostic Code 5202. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Additionally, Diagnostic codes 5201 for limitation of arm and 5203 for impairment of clavicle or scapula are not of application since the highest available ratings are 40 percent and 20 percent, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5201 and 5203. The preponderance of the evidence is against the claim for evaluation in excess of 40 percent for gunshot wound to the right arm from August 23, 2012. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. Extraschedular Consideration In general, the schedular 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. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to service connection for hearing loss is denied. Entitlement to a rating in excess of 30 percent, prior to August 23, 2012, for gunshot wound to the right arm is denied. Entitlement to a rating in excess of 40 percent, from August 23, 2012, for gunshot wound to the right arm is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs