Citation Nr: 1527399 Decision Date: 06/26/15 Archive Date: 07/07/15 DOCKET NO. 14-05 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a gunshot wound of the left leg. 2. Entitlement to service connection for residuals of a gunshot wound to the left leg. 3. Entitlement to service connection for post-traumatic headaches, as secondary to service-connected residuals of traumatic brain injury (TBI). 4. Entitlement to a higher initial rating, greater than 70 percent, for TBI and posttraumatic stress disorder (PTSD), with substance abuse. 5. Entitlement to a higher initial rating, greater than 10 percent, for residuals of a left ulna fracture. 6. Entitlement to a compensable initial rating for post-appendectomy surgical scaring. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James Brakewood, Agent ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 1968 until November 1970, including nearly one year of overseas service. The Veteran has been awarded the National Defense Service Medal, the Army Commendation Medal, the Air Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011, April 2012, and June 2013 decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in San Diego, California and Providence, Rhode Island. Original jurisdiction over all issues has since been transferred to the RO in San Diego. The issues of service connection for a gunshot wound of the left leg and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 1971 decision, the RO denied service connection for shrapnel wounds of both legs. The Veteran did not file an appeal, and the decision became final. 2. The evidence associated with the claims file subsequent to the April 1971 decision relates to unestablished facts that are necessary to substantiate the Veteran's service connection claim regarding the presence of a current left leg disability. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. Headache symptoms are related to service-connected TBI. 4. Throughout the initial rating period, TBI and PTSD with substance abuse have been productive of total occupational and social impairment, with symptoms such as impaired memory, extreme hyperreactivity, chronic sleep impairment, diminished interest in participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and a sense of foreshortened future. 5. Throughout the initial rating period, residuals of a left ulna fracture have been productive of occasional tenderness, but no functional loss of use. 6. Throughout the initial rating period, post-appendectomy surgical scars have been non-disfiguring and entirely unproductive of any other symptoms. CONCLUSIONS OF LAW 1. The April 1971 decision denying service connection for shrapnel wounds both legs became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. Evidence received since the April 1971 decision is new and material to reopen a claim of service connection for a left leg gunshot wound. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. The criteria for service connection for headaches, as associated with TBI and PTSD with substance abuse, have been met. 38 U.S.C.A. §§ 1101, 1110, 1137 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 4.124a (2014). 4. The criteria for a 100 percent rating for TBI and PTSD with substance abuse have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, 4.130, Diagnostic Code 9411-8045 (2014). 5. The criteria for an initial rating in excess of 10 percent residuals of a left ulna fracture have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5211 (2014). 6. The criteria for a compensable initial rating for a post-appendectomy surgical scar have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7804 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran is seeking to reopen a previously denied claim of service connection for a shrapnel wound to his left leg. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105 (West 2014). However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran originally claimed entitlement to service connection for "shrapnel wounds both legs" in December 1970, less than one month after separating from active service. An examination was scheduled, but the Veteran failed to appear and his claim was thus denied in April 1971. The Veteran did not timely appeal from this decision, and it thus became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103 (2014). In May 2010, the Veteran claimed service connection for "gunshot, left leg," which the Board interprets as a claim to reopen his previously denied left leg injury claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2014). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the time of the prior final denial in April 1971, the Veteran underwent a VA examination in October 2013 which revealed the presence of a "non-disfiguring scar of the left lower extremity." At the time of the prior denial, because the Veteran had failed to report for the scheduled examination, there was no clinical evidence of any left leg disorder of any kind. Accordingly, as the October 2013 examination report represents evidence not previously submitted to agency decision makers, and relates to an unestablished fact necessary to substantiate the claim - namely the presence of a current left leg disorder, the Board finds that the additional evidence is new and material to reopen service connection for a gunshot wound of the left leg. Initial Ratings, Generally Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2014). If two 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 (2014). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's appeals for higher initial ratings are appeals from the initial assignments of disability ratings following the establishment of service connection. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). TBI and PTSD with Substance Abuse In an April 2012 decision on appeal, the Veteran was awarded service connection for PTSD and granted a 30 percent evaluation, effective June 30, 2011. In a December 2013 decision, the Veteran's service-connected disability was recharacterized as TBI and PTSD with substance abuse, following medical evidence that symptoms of the Veteran's TBI and PTSD overlapped and could not be differentiated. Additionally, the RO granted a 70 percent rating, effective May 13, 2010. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2014). The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. In this case DC 8045 is used for rating the Veteran's TBI, while DC 9411 relates to PTSD. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411. Under this General Rating Formula, a 70 percent evaluation is provided for occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names of close relatives, own occupation, or own name. Id. Effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. The provisions of this rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit, even if such claims are subsequently remanded to the AOJ. Accordingly, as this matter was certified to the Board in May 2014, prior to August 4, 2014, the newly adopted regulations are not for application. In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scores as one component of the overall disability picture. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Here, the record reflects GAF scores during the period on appeal ranging from 55 to 65. GAF scores from 70 to 61 reflect some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but indicate that the Veteran is generally functioning pretty well, and has some meaningful relationships. DSM-IV. Where GAF scores are between 60 and 51, this indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. Cognitive impairment and other residuals of traumatic brain injury not otherwise classified, are based on a table of 10 important facets related to cognitive impairment and subjective symptoms, called the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a, DC 8045 (2014). Under this Code, a 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is "total," then the overall percentage evaluation is based on the highest facet. A 70 percent evaluation is assigned if "3" is the highest level of evaluation for any facet. There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. These are subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are also evaluated under the subjective symptoms facet in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. However, any residual with a distinct diagnosis that may be evaluated under another Code, such as migraine headache or Meniere's disease, should be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Emotional and behavioral dysfunctions are evaluated under 38 U.S.C.A. § 4.130, where there is a diagnosis of a mental disorder, as there is here. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate Diagnostic Code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, these are evaluated under the most appropriate Diagnostic Code, with each condition evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. After reviewing the entire claims file, the Board finds that the Veteran's TBI and PTSD with substance abuse has more nearly approximated the criteria for a 100 percent, i.e., total, rating throughout the period on appeal. Specifically, TBI and PTSD have been productive of total occupational and social impairment, with symptoms such as impaired memory, extreme hyperreactivity, chronic sleep impairment, diminished interest in participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and a sense of foreshortened future. VA examination in December 2011 reflected a GAF score of 65, evidence of "mild to moderate mental symptoms and impairment." The examiner identified several mental health disorders including PTSD, depressive disorder, and substance abuse. Those symptoms associated only with the diagnosis of PTSD were anxiety, tension and rare irritability; hyper alertness; recurrent intrusive thoughts of combat; rare flashbacks of combat; bad dreams of the combat; insomnia with perimeter checks; heightened anxiety and physiological reactivity when encountering reminders of combat; somewhat impaired memory and concentration, and somewhat limited sociability. In contrast, those symptoms related to the Veteran's non-service-connected depressive disorder were occasional crying episodes; somewhat impaired memory and concentration; and - like PTSD - somewhat limited sociability. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This assessment held true for both PTSD and nonservice-connected depression. The Veteran had recurrent and distressing recollections and dreams of in-service events, with feelings as if the event was recurring. He also experienced intense psychological distress at exposure to internal or external cues that symbolize or resemble aspects of in-service traumatic events, and was physiological reactivity to such exposures. The Veteran experienced numerous avoidance behaviors, as well as persistent symptoms of increased arousal such as difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. Symptoms also included anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. With regard to occupational and social impairments, the examiner reported that the Veteran had only mild to moderate mental health symptoms, causing a decrease in work efficiency and his ability to perform occupational tasks, but only during periods of significant stress. The Veteran underwent both TBI and PTSD VA examinations in October 2013 and the examiner noted that it was not possible to differentiate what portion of the Veteran's symptom were attributable to the TBI and which to his PTSD. PTSD-specific evaluation showed occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The Veteran reported impaired focus, concentration, memory, and recall, difficulty with driving, mood swings, frustration, and irritability. He had recurrent and distressing recollections of in-service traumatic events, with recurrent distressing dreams, acting or feeling as if traumatic in-service events were recurring, intense psychological distress at exposure to internal or external cues that symbolize or resemble any aspect of in-service traumatic events, and physiological reactivity. He showed signs of persistent avoidance behavior, with diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and a sense of foreshortened future. The Veteran's symptoms also included difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The Veteran's GAF score was 55. As described in greater detail above, evaluations for TBI are assigned based upon the highest level of severity for any facet of cognitive impairment and other residuals TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. On examination in October 2013, a level of severity of "3" was assigned for the Memory, attention, concentration, executive functions facet, indicating that an examiner has found evidence such as objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. A higher level of severity of "Total" is not warranted unless an examiner finds evidence such as objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. A level of severity of "0" was assigned for the Judgment facet, indicating that an examiner has found evidence of normal judgment. A higher level of severity of "1" is not warranted unless an examiner finds evidence of mildly impaired judgment, including symptoms such as for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A level of severity of "2" was assigned for the Social interaction facet, indicating that an examiner has found evidence that social interaction is frequently inappropriate. A higher level of severity of "3" is not warranted unless an examiner finds evidence that social interaction is inappropriate most or all of the time. A level of severity of "2" was assigned for the Orientation facet, indicating that an examiner has found evidence such as occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation. A higher level of severity of "3" is not warranted unless an examiner finds evidence such as often disoriented to two or more of the four aspects (person, time, place, situation) of orientation. A level of severity of "0" was assigned for the Motor activity (with intact motor and sensory system) facet, indicating that an examiner has found evidence of motor activity normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). A level of severity of "2" was assigned for the Visual spatial orientation facet, indicating that an examiner has found evidence such as moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system). A higher level of severity of "3" is not warranted unless an examiner finds evidence such as moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS (global positioning system). A level of severity of "1" was assigned for the Subjective symptoms facet, indicating that an examiner has found evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. A higher level of severity of "2" is not warranted unless an examiner finds evidence of three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. A level of severity of "2" was assigned for the Neurobehavioral effects facet, indicating that an examiner has found evidence of one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A higher level of severity of "3" is not warranted unless an examiner finds evidence of one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. A level of severity of "0" was assigned for the Communication facet, indicating that an examiner has found evidence such as able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. The evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. The Veteran's TBI symptoms warrant the assignment of a 70 percent rating based upon the highest severity level of "3," which was assigned for the following facet: memory, attention, concentration, executive functions. A 100 percent evaluation for TBI alone cannot be assigned without evidence of a "total" level of severity for at least one of the relevant facets. While TBI on its own does not rise to the level of a total rating, on consideration of the entire period on appeal, the Board is struck by the severity of the combined effects of the Veteran's TBI and PTSD. Thus, the Board nonetheless finds that the overall disability picture more closely mirrors that of a 100 percent rating. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's TBI and PTSD with substance abuse has been 100 percent disabling throughout the entire initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. The October 2013 examiner noted that hearing loss and tinnitus are attributable to the Veteran's TBI, although service connection having been previously established, these disabilities are already rated separately and are not subject of the current appeal. The Veteran examiner also indicated that the Veteran's headaches, including migraine headaches, were attributed to his TBI. As noted above, 38 C.F.R. § 4.124a instructs that TBI residuals with a distinct diagnosis that may be evaluated under another Code, specifically to include migraine headache, are to be separately evaluated. Here, as examination has revealed that symptoms of headaches are related to the Veteran's TBI, the Board finds that entitlement to a separate rating is warranted. Unfortunately, because the record does not contain sufficient evidence at the present time to establish an appropriate rating for headaches, the Board cannot evaluate the degree of severity and accordingly is limited to service-connecting headaches, without assigning an initial rating. Residuals of a left ulna fracture During service, the Veteran fell from a helicopter, fracturing his left arm ulna when the aircraft made a sudden sharp turn causing him to fall out. He was caught by a six-foot safety strap, but hit his left arm against the helicopter skid, causing it to fracture. The Veteran reportedly was told by a physician that the break did not set properly and it was recommended that the arm be re-broken and recast, which he refused. The fracture healed essentially without sequelae although he feels his flexibility in the left arm - his nondominant arm - is slightly less than in his right arm. Service connection for residuals of a left ulna fracture was established in the May 2011 decision on appeal, with an initial 10 percent evaluation, effective May 13, 2010. The Veteran's left arm disability is rated under 38 C.F.R. § 4.71a, DC 5211. Under this Code, malunion of the ulna with bad alignment is rated 10 percent for the major side and 10 percent for the minor side; nonunion of the ulna in the lower half is rated 20 percent for the major side and 20 percent for the minor side; nonunion of the ulna in the upper half, with false movement, without loss of bone substance or deformity is rated 30 percent for the major side and 20 percent for the minor side; nonunion of the ulna in the upper half, with false movement, with loss of bone substance (1 inch (2.5 centimeters) or more) and marked deformity is rated 40 percent for the major side and 30 percent for the minor side. 38 C.F.R. § 4.71a (2014). In evaluating the Veteran's appeal, the Board has considered all potentially applicable Codes, include DC 5210 which provides that nonunion of the radius and ulna, with flail false joint, is rated 50 percent disabling for the major side and 40 percent for the minor side. Id. Additionally, DC 5209 provides ratings for other impairment of the elbow. Under that Code, joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, is rated 20 percent disabling for the major side and 20 percent for the minor side; Flail joint of the elbow is rated 60 percent disabling for the major side and 50 percent for the minor side. Id. After reviewing the entire claims file, the Board finds that residuals of a left ulna fracture have not been more than 10 percent disabling at any time during the period on appeal. Specifically, residuals of a left ulna fracture have been productive of occasional tenderness, without any functional loss of use. The Veteran's symptoms have been largely limited to subjective complaints of tenderness. On VA examination in August 2010, for example, he stated that he worked as a gardener, but had noticed no particular problems with his arm other than an occasional ache or pain, which he generally ignores. Pain occasionally occurred in the area for no identifiable reason, and was not related to activity. Physical examination revealed "very mild tenderness located approximately 13 centimeters distal to the lateral epicondyle." There was no obvious deformity, and range of motion at the left elbow, including supination and pronation, was normal. In September 2010 the Veteran's left ulna fracture continued to have no known sequelae except for occasional localized tenderness. Radiographic imaging of the left arm in November 2010 showed a well-healed, but somewhat angulated, fracture of the ulna midshaft, with minimal degenerative changes and soft-tissue swelling. VA examination in January 2012 showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or ankylosis of the left wrist. All ranges of motion were normal, and were not additionally decreased on repetitive motion. Furthermore, there was no additional limitation due to pain, fatigue, weakness, lack of endurance or incoordination. Radiographic imaging in October 2013 revealed evidence of an old healed fracture at the mid shaft of the ulna with mild deformity due to minimal overriding of the fractured ends. The radius showed no evidence of fracture or structural abnormality, and the proximal and distal ends were intact with normal alignment at the elbow and wrist. As objective radiographic imaging has shown, the Veteran's left ulna is well-healed with only minimal degenerative changes. Thus, as there is no evidence of nonunion of the ulna in the lower half, a rating of greater than 10 percent cannot be assigned under the current Code, DC 5211. Having considered other potentially applicable Codes, the Board finds that no rating of greater than 10 percent us warranted under any other Diagnostic Code. Specifically, there has been no functional limitation of motion, even taking in to account such factors as pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups (DCs 5206, 5207, 5208). Similarly, there are no impairments of the elbow (DC 5209), and the radius and ulna are not subject to a nonunion (DC 5210). In short, the Veteran's only symptoms are mild and occasional tenderness, which causes no functional loss of use of the left arm. Accordingly, the Board concludes that the Veteran's residuals of a left ulna fracture has been 10 percent disabling, and no higher, throughout the entire initial rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Post-appendectomy Surgical Scaring The Veteran underwent an appendectomy during service, and in the May 2011 decision on appeal the RO established service connection for a residual scar, and granted a noncompensable rating effective May 13, 2010. The Veteran's scars are rated under 38 C.F.R. § 4.118, DC 7804. Under this Code, a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are painful or unstable. Note (1) describes an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118 (2014). After reviewing the entire claims file, the Board finds that the Veteran's post-appendectomy surgical scars has not been compensably disabling at any time during the period on appeal. Specifically, the scars, other than being present but non-disfiguring, have been entirely unproductive of any symptoms. VA examination in August 2010 revealed that the Veteran's post-appendectomy scaring had "healed without sequelae" and was currently productive of "[n]o symptoms." The scaring itself included a primary 9 centimeter by 5 centimeter transverse scar in the right lower quadrant area, and 5.5 centimeter by 2 millimeter longitudinal scars along the suture margins across the primary scar. There was a 3 centimeter by 3 millimeter "L" shaped scar just lateral and superior to the primary scar. Scars were skin colored , non-tender, non-adherent, non-hypertrophied. During his October 2013 VA examination, the Veteran denied any symptoms pertaining to post-appendectomy scars. The examiner noted the Veteran's primary anterior trunk scar, describing it as non-disfiguring and non-tender. The total scar area was 12 square centimeters, and scaring resulted in no limitation of function, and no functional impacts. To the extent that the Veteran is competent report on symptoms which are capable of lay observation, such as pain, his reports on examination that scaring results in no subjective symptoms is highly probative. As the Veteran's lack of symptoms are consistent with the objective signs reported by VA examiners, the Board is left with no evidence of any compensably disabling symptoms of the Veteran's in-service appendectomy. Accordingly, the Board concludes that the Veteran's post-appendectomy surgical scaring has been noncompensably disabling throughout the entire initial rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to schedular ratings based on the criteria described in the Diagnostic Codes, a veteran may be entitled to what is known as an "extraschedular" rating based on criteria not listed in a disabilities' specific Diagnostic Code. 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. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, than the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115. Here the schedular rating criteria used to rate the Veteran's service-connected residuals of a left ulna fracture and post-appendectomy surgical scaring above, reasonably describe and assess his disability level and symptomatology. The criteria rate the disabilities on the basis of skeletal union or non-union, and the presence or lack of pain and stability of his scar. Thus, the demonstrated manifestations - namely slight tenderness of the left arm, and no pain or other symptoms of appendectomy scaring - are contemplated by the provisions of the rating schedule. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's disabilities that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities - including thoracolumbar degenerative arthritis, cervical spine degenerative arthritis, residuals of a left ulna fracture, right hand osteopenia with arthritis, left knee arthritis, right knee arthritis, status post-right clavicle fracture, post-appendectomy surgical scar, tinnitus and right ear hearing loss - in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluations are adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. With regard to the Veteran's TBI and PTSD with substance abuse, the Board is granting a total disability rating, and thus consideration of an extraschedular rating is moot. Duties to Notify and Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Notice letters were sent to the Veteran in January 2010, September 2011, and May 2012, prior to the initial adjudication of the claims on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Regarding the Veteran's appeals for higher ratings for TBI and PTSD with substance abuse, residuals of a left ulna fracture, and a post-appendectomy surgical scar, these appeals arises from the appeal of initial evaluations following the grants of service connection. Once service connection is granted the claim is substantiated, and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under applicable VA laws and regulations. VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by VA examinations in August 2010, December 2011, January 2012, and October 2013 during which examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. To the extent to which some examiners were not provided the Veteran's claims file for review, all examiners elicited accurate histories from the Veteran regarding the disabilities at issue. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2014); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). To the extent that the Board is reopening the claim of service connection for a left leg gunshot wound, the Board is granting, in full, the benefit sought on appeal and VA has no further duty to notify or assist regarding this issue. Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. ORDER New and material evidence having been received, the appeal to reopen service connection for a gunshot wound of the left leg is granted. An initial rating of 100 percent for TBI and PTSD with substance abuse is granted. Service connection for migraine headaches as secondary to TBI is granted. An initial rating in excess of 10 percent for residuals of a left ulna fracture is denied. A higher (compensable) initial evaluation for post-appendectomy surgical scar is denied REMAND Left Leg Gunshot Wound In May 2011 the Veteran reported that while riding as a crew chief aboard a helicopter in Vietnam, he removed his body armor on one occasion and was shot through the left thigh. The Veteran indicated that because he had broken protocol by removing his armor, he did not seek care for the injury out of concern that he would be subject to a court-martial. An October 2013 examination revealed a linear lower left extremity scar of 4 centimeters by 2 millimeters. The Veteran's DD Form-214 confirms that he was a Crew Chief aboard a UH-18 helicopters, and thus his report of having been shot in the leg is consistent with the nature and circumstances of his service. Given that the Veteran shows evidence of some traumatic event of the lower left extremity, the Board finds that an examination is needed in order to determine whether the Veteran's current lower extremity wound was incurred during service. Total Disability Rating Based on Individual Unemployability The Veteran contends that his service-connected disabilities - TBI and PTSD with substance abuse, thoracolumbar degenerative arthritis, cervical spine degenerative arthritis, residuals of a left ulna fracture, right hand osteopenia with arthritis, left knee arthritis, right knee arthritis, status post-right clavicle fracture, post-appendectomy surgical scar, tinnitus and right ear hearing loss - rendered him unable to maintain gainful employment. His total combined rating during the period on appeal was 70 percent until May 2010 when, by operation of the Board's order above in the immediate decision, the Veteran was granted a 100 percent rating. In his December 2008 application for TDIU, the Veteran indicated that he had last worked in 2005 as a security training specialist. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2014). The Board recognizes that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. In other words, TDIU may be warranted in addition to a schedular 100 percent evaluation where the TDIU is granted for a disability other than the disability for which a 100 percent rating was in effect. Unfortunately, without further development, the Board is unable to determine the Veteran's eligibility for the grant of TDIU. Specifically, the Veteran must be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order that the Board may assess his employment history. Further, a single examination report should be obtained, which takes in to account all of the Veteran's service-connected disabilities and renders an opinion as to whether these disorder cause the Veteran to be unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination of his left lower extremity. Following review of the Veteran's claims file and a physical evaluation, the examiner should identify any lower left extremity findings of the type which may be the result of an impact or projectile wound. This includes, but is not limited to, any skin, muscle, or other tissue wounds. For EACH clinical finding identified, state whether the finding is at least at least as likely as not (i.e., to at least a 50 percent degree of probability) related to service to include a gunshot wound to the leg. In addition to rendering the foregoing opinions, the examiner MUST discuss any scarring of the left lower extremity, in particular a linear 4 centimeter by 2 millimeter lower left extremity scar, and state whether it is at least as likely as not the result of an in-service gunshot wound. For the purposes of rendering an opinion, the examiner should accept as accurate the Veteran's account of having been shot while riding aboard a helicopter in Vietnam. 2. Ask the Veteran to complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and supply him with an appropriate amount of time to return the form to VA. 3. Only after the Veteran has been asked to complete VA Form 21-8940 and afforded time to do so, schedule the Veteran for a VA examination referable to his employability. The claims file is to be made available to the examiner, and on examination the examiner should describe the full vocational and occupational impact of each of the Veteran's service-connected disabilities both in isolation, and in combination together. The examiner should NOT CONSIDER THE EFFECTS OF TBI AND PTSD IN THEIR ASSESSMENT. The examiner should offer an opinion as to whether the Veteran is capable of securing or following substantially gainful occupation, and if not, whether it is due to one or more service-connected disabilities, without regard to any current nonservice-connected disabilities. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be notified and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs