Citation Nr: 1338654	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-21 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating evaluation for a gunshot wound, left shoulder, Muscle Group I, currently rated with Muscle Group IV at 30 percent.

2.  Entitlement to an increased rating evaluation for a gunshot wound, left shoulder, Muscle Group IV, currently rated with Muscle Group I at 30 percent.

3.  Entitlement to an increased rating evaluation for a gunshot wound, left chest area, with history of pneumothorax (previously coded 6818), in excess of 20 percent.


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

B. Rideout, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1967 to July 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that the Veteran's service representatives submitted a brief, or informal hearing presentation, in October 2013, in support of the Veteran's claims.  The remaining documents are either duplicative or irrelevant to the issue on appeal.  

The issue of entitlement to an increased rating evaluation for a gunshot wound, left chest area, with history of pneumothorax is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran suffered a through-and-through gunshot wound injury to the left shoulder with damage to Muscle Groups I and IV.  Each wound is no more than a moderately severe muscle injury.



CONCLUSIONS OF LAW

1.  Gunshot wound of the left shoulder, Muscle Group I, is 20 percent disabling.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.55, 4.56, 4.73 DC 5301(2013).

2.  Gunshot wound of the left shoulder, Muscle Group IV, is 20 percent disabling.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.55, 4.56, 4.73 DC 5304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, VA's duty to notify was satisfied by way of a letter sent to the Veteran in March 2009, prior to the initial decision on the claim in June 2009, that fully addressed all notice elements.  

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records and all available VA medical records are associated with the claims file.  Additionally, the Veteran signed and returned a waiver of the 30-day waiting period dated February 2012, which indicated that he had no additional evidence to submit for the claim.  There is no indication from the Veteran, his representative, or the claims file that there are any outstanding records.

The Veteran was also afforded a VA examination relevant to his left shoulder disorder in January 2010.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As discussed in greater detail below, the Board finds that the January 2010 examination was adequate, as it was predicated on a physical examination of the Veteran, which included all relevant testing.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Law and Regulations

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ratings. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability (during the rating period) that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 

Muscle injury disabilities are rated using 38 C.F.R. §§ 4.55, 4.56, and 4.73.  The Veteran's gunshot wound of the left shoulder is rated under Diagnostic Code (DC) 5301, Muscle Groups I and IV.  Also of note, the Veteran's left shoulder is his nondominant shoulder/arm.   

Analysis

The Veteran contends that the disability ratings currently assigned for his service connected gunshot wound of the left shoulder are not consistent with the severity of the pain he currently experiences.

Disability ratings under 38 C.F.R. § 4.73 include DC 5301 - Muscle Group I (extrinsic muscles of the shoulder girdle (1) trapezius; (2) levator scapulae; (3) serratus magnus) and DC 5304 - Muscle Group IV (intrinsic muscles of the shoulder girdle (1) supraspinatus; (2) infraspinatus and teres minor; (3) subscapularis; and (4) coracobrachialis).  Disorders of these Muscle Groups are evaluated based upon whether the disorder or injury occurred in the dominant or nondominant arm/shoulder and according to the classifications discussed in 38 C.F.R. § 4.56 (slight, moderate, moderate severe, and severe).  The disorder is then assigned ratings from 0 to 40 percent.  The Veteran's disorder is currently rated as a moderately severe disability of the nondominate shoulder affecting Muscle Groups I and IV.  The evaluation was elevated, based upon past practice to a single higher evaluation.

A moderately severe disability occurs when there is a 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.  Records should show hospitalization for a prolonged period for treatment of the wound, consistent complaint of cardinal signs and symptoms of muscle disability, and if present, evidence of inability to keep up with work requirements.  Objective evidence of moderate severe muscle disability includes entrance and 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, and tests of strength and endurance, which demonstrates positive evidence of impairment when compared with sound side.  38 C.F.R. § 4.56(d)(3).

A severe muscle disability occurs when there is a 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.  Records should show hospitalization for a prolonged period for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.  Objective evidence of severe muscle disability includes 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.  Additional signs of severe muscle disability, when present, include: x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher evaluation for his left shoulder disorder as assigned, based upon each being moderately severe.  However, his left shoulder disorder affecting Muscle Groups I and IV must be rated separately under present law.

The evidence of record supports an assignment of a moderately severe or 20 percent rating under DC 5301 and 5304 for the Veteran's left shoulder disorder, for Muscle Groups I and IV.  The Veteran's January 2010 VA examination shows that the Veteran has a through and through wound from a small high velocity missile.  The Veteran's service treatment records confirm the Veteran's gunshot injury, treatment with debridement, and an approximate 2 month treatment period while in service.  There is no evidence of shattering bone fracture.

The January 2010 VA examiner noted that the Veteran was experiencing pain, weakness, increased fatigability and an inability to sleep on his left side due to pain.  He also noted entry and exit scars at the site that were not painful or adherent.  Muscle strength testing revealed that the Veteran's shoulder was weakest at Muscle Groups I and IV. The examiner also reported that the Veteran was not working as a result of retirement based on age eligibility and chronic shoulder pain.   

While the Veteran reported severe pain upon use of his left arm, examination revealed that there was no damage to the nerves, tendons, or bone, no loss of muscle, no muscle herniation, and no limitations in the Veteran's range of motion.  Additionally, the examiner reported that there was also no decreased coordination or uncertainty of movement.

The Board finds that the January 2010 VA examination demonstrates that the Veteran's left shoulder disorder more accurately aligns with moderately severe injuries for Muscle Groups I and IV.

For compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups.  38 C.F.R. § 4.55(e).  In the present case, the Veteran's moderately severe rating of Muscle Group I, was increased one level to the 30 percent "severe" rating.  

It is clear from the history that each muscle injury is no more than moderately severe.  Under the past practice, since each wound was in the same region, there would be only a single evaluation with elevation to the next higher evaluation.  However, regulations change with time and sometimes, the change is not intended.  That fact is not relevant.  VA amended the controlling regulation.  Here, we have two through and through wounds, each moderately severe in degree and acting upon the same joint.  The Court has been remarkably clear that such wounds are to be separately rated.  Jones v. Principi, 18 Vet. App 248 (2008).  Therefore, each wound is to be separately rated as 20 percent.  Since the combined evaluation for two 20 percent evaluations is not less than a single 30 percent evaluation, such change does not violate 38 U.S.C.A. § 1155.

The Board has considered assigning separate and additional ratings for his left shoulder disability under Diagnostic Code 5201 for limitation of motion of the left arm.  See 38 C.F.R. § 4.71a.  However, as limitation of motion (flexion, abduction, and rotation) is a manifestation of both muscle and joint injuries, this symptom is already compensated by the Veteran's existing disability rating.   The same signs and symptoms cannot be used to support more than one evaluation under 38 C.F.R. § 4.14.  In effect, the Veteran is not entitled to separate and additional ratings for any limitations of motion in his left shoulder, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14. 

Further, while application of 38 C.F.R. § 4.14  does not prohibit the Board from comparing the rating criteria for the left shoulder joint versus the rating criteria for the affected left shoulder muscles and considering which provides a higher evaluation based on the manifestations of the disability, the Board notes that the Veteran's evaluation under DC 5301, a muscle injury rating criteria, is protected.  See 38 C.F.R. § 3.951.  Finally, the Board notes that the Veteran's January 2010 VA examination noted that the Veteran did not have any limitation of motion and thus, a rating increase using DC 5201 in place of DC 5301-5304 is not warranted.

While the Veteran has entry and exit scars at the site of his gunshot wound, those too are already contemplated by the muscle injury criteria of 38 C.F.R. § 4.56.   As such, the Veteran may not be evaluated for an increased rating as a result of his scars as doing so would also constitute pyramiding and is not permissible under 38 C.F.R. § 4.14.

Based upon guidance by Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate.  In the present case, the Board finds the Veteran's symptoms have been constant throughout the appeal period and an increased evaluation for any portion of the appeal period is not warranted at any time.

Extra-schedular Rating

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's left shoulder disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes pain and weakness.  Moreover, as discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left shoulder disorder under the provisions of 38 C.F.R. § 3.321(b)(1)  have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun v. Peake, 22 Vet. App. 111 (2008).

Total Disability Rating Based On Individual Unemployability

Lastly, the Board notes that the Veteran has not claimed that his left shoulder disorder renders him unemployable.  The record also does not show that his disability prevents him from obtaining or maintaining employment.  While the Veteran reported that he was retired as of February 2009, during his December 2011 VA examination, he stated that the reason for his retirement was left shoulder pain and eligibility for retirement based on his age.  The Board also notes that in March 2010 the Veteran stated that he could not "work over [his] head" due to chest pain.  The Veteran did not allege an inability to work altogether in that claim.  Therefore, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability has not been reasonably raised by the Veteran or the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).


ORDER

Separate 20 percent evaluations for gunshot wound, left shoulder, Muscle Group I and Muscle Group IV are granted.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  

The Board finds that a remand is required in order to afford the Veteran a new VA examination.  While the Veteran was afforded such an examination in connection with this claim in February 2012, the Board finds that the examiner did not perform an exercise capacity test, as such, the Board cannot fully evaluate the Veteran's disability under the rating schedule.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).    

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded an appropriate VA examination to determine the current severity and manifestation of the Veteran's gunshot wound, left chest area, with history of pneumothorax disorder.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  

The examiner should opine as to the current severity and manifestation of the Veteran's disorder.

The examiner should also conduct any indicated evaluations, studies, and tests.  The results of this testing should be included in the examiner's report.

All opinions expressed should be accompanied by supporting rationale.

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs