Citation Nr: 1611982 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 09-44 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Evaluation of shell fragment wound, left arm, muscle group VI, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2014, the Board remanded this issue for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. FINDING OF FACT A shell fragment wound, left arm, muscle group VI, is productive of no more than moderate disability of the affected muscle. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a shell fragment wound, left arm, muscle group VI, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5306 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter sent to the Veteran in September 2008. The claim was last adjudicated in June 2015. Next, VA has a duty to assist the Veteran 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 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . must be sought-only those that are relevant to the [V]eteran's claim." Golz at 1320, 21. In this case, service treatment records, private medical records, VA treatment records, and lay statements have been associated with the record. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The Veteran's service treatment records, VA treatment records and examination reports, and lay statements have been associated with the record. In September 2008, VA afforded the Veteran an examination with respect to his shell fragment wound disability. The VA examiner reviewed VA treatment records, considered the Veteran's history and statements, and rendered a medical opinion based upon the facts of the case and the examiner's knowledge of medical principles. This examination is found to thoroughly and accurately portray the extent of the shell fragment wound disability. Therefore the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one). Pursuant to a Board remand in August 2014, VA scheduled the Veteran for another VA examination with respect to the severity of his shell fragment wound. The Veteran failed to report to the examination. The provisions of 38 C.F.R. § 3.655 (2015) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied. In this case, the VA treatment records of August 2014 indicate that the Veteran has a history of Alzheimer's disease. While this may be considered good cause for his failure to report to the examination, the Veteran has not requested another examination. Thus, the Board herein decides the case on its merits where it has sufficient information, and denies the claim without remanding pursuant to 38 C.F.R. § 3.655 where there is otherwise insufficient evidence to establish entitlement. There is no prejudice to the Veteran in doing so as the Veteran has been represented throughout the appeal and his representative has actively participated in the appeal, most recently submitting an appellate brief in March 2016. Moreover, under the circumstances, the Board finds that the RO substantially complied with the Board's remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Ratings Principles 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 (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be assigned where the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2015). 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). Although the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The United States Court of Appeals for Veterans Claims has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evaluation of Shell Fragment Wound The Veteran's shell fragment wound is evaluated as 10 percent disabling under Diagnostic Code (DC) 5306, which evaluates injuries to the Muscle Group VI, the extensor muscles of the elbow, which include the triceps and anconeus. 38 C.F.R. § 4.73, DC 5306. The function of these muscles is extension of the elbow (long head of triceps is stabilizer of shoulder joint). Id. Under DC 5306, the following ratings apply to muscle injuries of the dominant extremity: a noncompensable (0 percent) rating is warranted for slight injury; a 10 percent rating is warranted for moderate injury; a 30 percent rating is warranted for moderately severe injury; and a 40 percent rating is warranted for severe injury. Id. For the non-dominant extremity, a noncompensable (0 percent) rating is warranted for slight injury; a 10 percent rating is warranted for moderate injury; a 20 percent rating is warranted for moderately severe injury; and a 30 percent rating is warranted for severe injury. Id. Muscle injuries are evaluated in accordance with 38 C.F.R. § 4.56. The pertinent provisions of 38 C.F.R. § 4.56 are as follows: (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. (d) Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: (1) Slight disability of muscles - (i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles - (i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (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 intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles - (i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. In this case, service treatment records show the Veteran sustained a shell fragment wound in April 1966. Treatment given was debridement with instructions to return for closure in 3 days. Several weeks later the Veteran complained of numbness in the right palm. Presumably, this was an error, as the evidence is clear that the Veteran was wounded in his left arm. The assessment was questionable nerve irritation from the fragment three weeks ago. He was advised to soak his arm in hot water and return the next day. The record from the next day notes continuous nerve irritation, that the area was well healed, and that subcutaneous metallic fragment pieces remained. The impression was "no need for drastic prescription now." The plan was to observe for the next month. In February 1968, the Veteran complained of abnormal feeling in the area of shrapnel wound, possibly numbness, although the handwriting in the treatment record is unclear. The record shows that pulse and "touch feeling" were normal. The need for a surgical consult was noted. A February 1968 Surgical Clinic note reports that there was a 1 mm metallic object next to the humerus. The examiner opined that "I don't believe the small [?] metallic object is causing his symptoms, but rather the soft tissue injury is responsible. Definitely this should not be removed." A June 1968 outpatient clinic record notes the Veteran reporting symptoms of pain over the site of the foreign body. In April 1969, the Veteran complained of discomfort and intermittent pain in the area for the past few weeks. He desired removal of the shell fragments. On examination, the site of the injury was mildly tender to pressure. "[R]em [?]" was negative. Another April 1969 record reported that the Veteran complained of persistent and recurrent pain in the palm of the left hand. The record noted a small scar of entrance in the post aspect of upper arm. There was no exit wound, no evidence of injury to the nerves of upper arm, normal muscle function in the arm, and no evidence of sensory loss in the hand. The record reported that the Veteran was very suggestive in that when symptoms were suggested, he agreed. The examiner opined that the Veteran did not have a nerve problem that needed treatment. The September 2008 VA muscles examination report notes that the Veteran stated that he was treated at a battalion aid station by a medic. He reported that he was simply bandaged and no further treatment was offered. He was then sent back to the field. The Veteran asserted that a Charlottesville, Virginia physician told him the shell fragment was in a position where it could hurt his arm. He reported at the time of the September 2008 examination that he had some aching in the arm, but no significant problems and took no medications for the arm. The examiner reported the Veteran's symptoms as numbness and tingling along the radial bone of the left arm extending into the left hand and involving the index, middle, and ring fingers. The examiner also described some pain in the anterior aspect of the upper arm, in the biceps area, not the triceps area where the Veteran's shell fragment wound occurred. The examiner stated that the Veteran reported that his discomfort comes out of his neck and into the upper arm. The examiner reported that the Veteran had extensive evaluation and treatment recently because of a stroke that he suffered earlier that year. The Veteran had been recently evaluated by VA rehabilitation services, which found that his left upper extremity was essentially normal at the shoulder, the elbow, the wrist, and the hand. The Veteran was noted to have no problems with the sensory evaluation of the left upper extremity either. On physical examination, the examiner found a single wound on the posterior surface of the left upper arm, at about the upper third, measuring 1.5 cm in length and about 0.5 cm in width. There was no mass under the wound. It was not elevated or depressed. There was no tenderness noted of the wound. Testing of the muscles in the upper arm showed that the flexion and extension muscles of the upper arm, and the flexion and extension muscles at the shoulder and the elbow, all were essentially normal, equal, and symmetrical. The examiner found no significant weakness or tenderness. The Veteran was able to perceive light touch using the diabetic monofilament over the entirety of the left upper extremity. The Veteran noted some questionable slight difference to the perception using the diabetic monofilament over the index, and middle fingers of the left arm. There was no change in that examination with repetitive motion. The examiner further found there was no tissue loss. The wound was not adherent to the underlying tissue, and there was no tissue breakdown of the scar. There was no evidence of any adhesions. There was no evidence of any tendon damage. There was no evidence of any bone, joint, or nerve damage in the humerus. Muscle strength was essentially unremarkable. There was no evidence of muscle herniation. Muscle function appeared to be normal. Examination of the elbow was normal as well. A September 2008 VA driver training evaluation reported deficits in neuro-musculoskeletal ability of all extremities, generally. However, the evaluation noted that the Veteran was able to execute the basic patterns of driving in a safe manner. A September 2008 VA rehabilitation note reported the results of detailed upper extremity strength tests. The result was normal left upper extremity muscle strength. Deficits were on the right upper extremity. November 2010 VA treatment records note residual weakness from a cerebrovascular accident (i.e. stroke). March 2013 VA treatment records note probable multi-infarct dementia. A September 2013 VA treatment record notes that the Veteran's left hand has contractures of the 3rd, 4th, and 5th digits. A review of neurological system reported the Veteran's judgment was not intact and that he was a poor historian. The treatment records for that time period also indicate the Veteran experienced muscle weakness around the time for which he had surgical repair of a right hip fracture. August 2014 VA treatment records note a history of Alzheimer's disease. After a review of the evidence of record, the Board finds that an evaluation in excess of 10 percent is not warranted as the disability picture more nearly approximates a moderate injury than it does a moderately severe or severe injury. In this regard, the Veteran's muscle strength was normal on testing in the September 2008 VA examination, as well as in VA rehabilitation records. Although records beginning in November 2010 note weakness, the evidence indicates that this weakness is generalized, rather than specific to the shell fragment wound, and is the result of his cerebrovascular accident. A higher evaluation is not warranted because, although the Veteran's wound initially was noted to have been debrided, there is no evidence of prolonged infection, sloughing of soft parts, or intermuscular scarring. Moreover, the wound is identified in X-rays and objective reports as being small fragments that are subcutaneous, and not deep. Treatment was debridement at a battalion aid station with instructions to return in three days. This is evidence against hospitalization for treatment of the wound. There was also no evidence of bone involvement. Hence, the Board finds that a moderately severe, or severe disability of the muscle is not shown. With respect to an evaluation based on nerve damage, the examiner found no evidence of nerve damage. The Board notes that the September 2013 VA medical record shows contracture of digits of the Veteran's left hand, the cause of such contracture was not provided. As the Veteran did not report to the May 2015 VA examination, the Board has insufficient evidence to relate the contractures to the Veteran's shell fragment wound. Moreover, as discussed below, the most probative evidence prior to this medical record is against a finding of nerve involvement. Although the Veteran has reported that he cannot lift or carry any loads due to the movement of shrapnel in his arm, see August 2008 Statement in Support of Claim, and that he has constant numbness and tingling in his arm, see March 2009 Notice of Disagreement, the September 2008 VA examination is evidence against such reports. The shrapnel area was nontender and muscle strength was normal on objective examination. The Veteran's symptoms of numbness and tingling appeared along areas away from the shell fragment wound, namely, the radial bone and the biceps area, rather than the triceps and the anterior upper arm. The Board finds the medical evidence to be of greater probative weight than the Veteran's lay assertions that he is entitled to a higher evaluation. This is because the medical evidence was provided by examiners who have greater experience than the Veteran in evaluating the nature and severity of disabilities. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the AOJ refer a claim to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1) (2015). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. Here, the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected disability. The Veteran reported weakness, pain, tingling and numbness from the shell fragment wound. The ratings schedule contemplates muscle weakness, fatigue, fatigue-pain, degree of scar, and loss of muscle tissue. Additional rating criteria contemplate nerve damage, although the Board finds against such additional evaluation. Accordingly, the rating criteria allow for additional signs and symptoms of disability, or greater degrees of disability. There is no evidence in the record of an exceptional or unusual clinical picture to render impractical the application of the regular schedular standards. The Schedular criteria are therefore adequate, and no further discussion of 38 C.F.R. § 3.321 is required. Finally, the Board notes that, under Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected disability. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An evaluation in excess of 10 percent for a shell fragment wound, left upper arm, muscle group VI, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs