Citation Nr: 1633509	
Decision Date: 08/24/16    Archive Date: 08/31/16

DOCKET NO.  10-38 353	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability rating (or evaluation) in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression for the initial rating period from August 9, 1994 to July 11, 2007.
 
2.  Entitlement to an increased disability rating (or evaluation) in excess of 10 percent for left leg gunshot wound (GSW) residuals involving Muscle Group XIV.

3.  Entitlement to an increased disability rating (or evaluation) in excess of 10 percent for GSW scars.

4.  Entitlement to an effective date earlier than July 11, 2007 for the award of basic eligibility for dependents educational assistance (DEA) under 38 U.S.C.A., Chapter 35.  

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) based only on impairment caused by the service-connected left leg GSW residuals.

(The issue of whether clear and unmistakable error is present in the March 1, 2013 Board of Veterans' Appeals (Board) decision that granted an effective date of September 1, 1994 for the award of service connection for PTSD is addressed in a separate Board decision.)


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service from June 1980 to November 1981, and from December 1990 to April 1992.

This appeal derives from a downstream element of a claim for service connection for PTSD that was received in August 1994.  This appeal comes to the Board of Veterans' Appeals (Board) from a March 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied service connection for PTSD.  The current agency of original jurisdiction (AOJ) is the VA RO in St. Petersburg, Florida.  This case involves a long and potentially confusing procedural history.  As such, further explanation is warranted.

Historically, a May 1992 rating decision granted service connection for gunshot wound, left thigh with residual muscle weakness and loss of flexion and assigned a 10 percent initial disability rating effective May 1, 1992 (the day after separation from active service).  A November 1992 rating decision granted service connection for scar, skin graft, left anterior thigh (as a left leg GSW residual) and assigned a noncompensable (0 percent) disability rating effective May 1, 1992.

An original claim for service connection for PTSD was received in August 1994, which was denied in the March 1996 rating decision.  A July 1998 rating decision, in pertinent part, declined to reopen service connection for PTSD.  A claim for an increased disability rating for the service-connected "muscle condition" and to reopen service connection for PTSD was received in July 2007.  A February 2008 rating decision denied an increased disability rating in excess of 10 percent for the left leg GSW residuals and declined to reopen service connection for PTSD.  

A claim for an increased rating for the service-connected GSW scars was received (via a telephone conversation with the Veteran) in December 2008.  The AOJ also treated the December 2008 telephone conversation with the Veteran as a "new" increased rating claim for the left leg GSW residuals.  In February 2009 (within one year of the February 2008 rating decision), the Veteran underwent a VA examination to assist in determining the severity of the left leg GSW residuals and scars.  A March 2009 rating decision granted a 10 percent increased disability rating for the GSW scars effective December 29, 2008, continued the 10 percent disability rating for left leg GSW residuals, and denied a TDIU.     

New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(a) (2015).  The February 2009 VA examination was conducted within one year of the February 2008 rating decision; therefore, the February 2008 rating decision did not become final and the March 2009 rating decision was merely a readjudication of the issue of an increased disability rating for the service-connected left leg GSW residuals.  

As such, the Board finds that, despite how it was characterized by the AOJ, the period on appeal with respect to the issue of an increased disability rating for the service-connected left GSW residuals runs from July 11, 2007 (the date the claim for an increased disability rating for the service-connected "muscle condition" was received by VA).  The period on appeal with respect to the issue of an increased disability rating for the service-connected GSW scars runs from December 29, 2008 (the date the claim for an increased rating for the service-connected scars was received by VA). 

The Board acknowledges that the date of claim and the date from which the period of appeal runs with respect to the left leg GSW residuals could also arise within the context of entitlement to an earlier effective date pursuant to 38 U.S.C.A. § 5110(a) (West 2014) and 38 C.F.R. § 3.400 (2015).  However, determining the relevant temporal focus and scope of the appeal period is also necessary in order to adjudicate increased rating claims.  Further, because all the "questions" that would pertain to an earlier effective date issue (when the increased disability rating claim was received by VA) are being decided by the Board's finding that the increased rating period with respect to the left leg GSW residuals on appeal stems from the July 11, 2007 claim date, the Veteran is not prejudiced by the Board treating this issue as part and parcel of the increased rating issue currently on appeal.  As such, all the questions that could be characterized as "effective date" questions are fully addressed as part of the increased rating appeal issues.

However, in the July 2007 claim, the Veteran requested an increased disability rating for the service-connected "muscle condition" and did not indicate that the service-connected scars had increased in severity.  The first correspondence from the Veteran of any kind indicating that the service-connected scars had worsened or requesting an increased rating for the scars is the December 2008 telephone conversation.  As such, the increased rating period for the service-connected GSW scars runs from December 29, 2008.  

An August 2010 rating decision granted service connection for PTSD with depression and assigned a (maximum) 100 percent schedular disability, effective July 11, 2007.  Basic eligibility to Dependents' Educational Assistance (DEA) was also established effective July 11, 2007.  In March 2013, the Board found that a March 1996 rating decision denying service connection for PTSD constituted clear and unmistakable error (CUE) and assigned an effective date of September 1, 1994 for the award of service connection for PTSD based on correspondence from the Veteran received by VA on September 1, 1994.  

An August 2013 rating decision implemented the March 2013 Board decision.  In August 2013, the Veteran filed a notice of disagreement with the 70 percent disability rating assigned for PTSD for the initial rating period prior to July 11, 2007.  A statement of the case was issued in August 2014 and, in September 2014, the Veteran filed a timely substantive appeal (on a VA Form 9).

The issue of whether CUE is present in the March 1, 2013 Board decision that granted an effective date of September 1, 1994 for the award of service connection for PTSD is addressed in a separate Board decision.  In the separate decision, the Board finds that the March 1, 2013 Board decision was clearly and unmistakably erroneous in assigning an effective date of September 1, 1994 for the grant of service connection for PTSD, and reversed the decision to reflect an effective date of August 9, 1994 for the grant of service connection for PTSD.  As pertinent to this decision, the initial rating period with respect to the issue of an initial disability rating in excess of 70 percent for PTSD with depression is from August 9, 1994 to July 11, 2007.

Further, in March 2013, the Board remanded the issues of increased disability ratings for the left leg GSW residuals and scars for additional development.  The Board also remanded the issue of entitlement to an effective date earlier than July 11, 2007 for the grant of entitlement to DEA, finding this issue to be inextricably intertwined with the implementation of the earlier effective date for service connection for PTSD granted by that decision.  Pursuant to the March 2013 Board remand, additional VA treatment records were obtained and associated with the claims file.  The Veteran was afforded a VA examination in September 2013 to assist in determining the severity of the service-connected left leg GSW residuals and scars.  As discussed below, the Board finds the September 2013 VA examination report was thorough and adequate and in compliance with the Board's remand instructions.  As such, the Board finds that there has been substantial compliance with the prior Board remand order.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008).     

In January 2015, the representative submitted copies of VA treatment records dated from 1994 to 1997.  These documents are duplicative of evidence already associated with the claims file.

The issues of service connection for erectile dysfunction, to include as secondary to service-connected disabilities, and entitlement to special monthly compensation (SMC) based on loss of use of a creative organ have been raised by the record, see September 2013 written statement (on a VA Form 21-4138), but have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).  As these claims were received prior to March 24, 2015, the Veteran was not required to use a standardized claim form.  Cf. 38 C.F.R. § 3.155(a) (2015). 

The issue of entitlement to a TDIU based only on impairment caused by the service-connected left leg GSW residuals is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  For the initial rating period from August 9, 1994 to November 7, 1996, the PTSD with depression manifested demonstrable inability to obtain or retain employment.

2.  For the initial rating period from November 7, 1996 to July 11, 2007, the PTSD with depression has more nearly approximated total occupational and social impairment due to such symptoms as: memory loss, avoidance of crowds, depression, anxiety, irritability, hypervigilance, poor attention and concentration, intrusive thoughts, auditory and olfactory hallucinations, grossly inappropriate behavior, impaired impulse control with periods of violence, angry outbursts, suicidal and homicidal ideation, intermittent inability to perform activities of daily living, difficulty in adapting to stressful circumstances including work or a worklike setting, impaired judgment, disturbances in mood, and inability to establish and maintain effective work and social relationships.

3.  For the entire increased rating period from July 11, 2007, the left leg GSW residuals have been manifested by a through and through muscle injury by a single large caliber, high velocity missile with associated fasciotomy and skin graft surgeries, intermuscular scarring, pain, entrance and exit scars indicating track of missile through one or more muscle group, ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track with deep scars that are 192 square centimeters and result in moderate functional impairment due to pain, some loss of deep fascia, some loss of muscle substance, consistent fatigue-pain at a more severe level, occasional impairment of coordination, occasional uncertainty of movement, some diminished sensation, and some reduced muscle strength in the lower extremity, more nearly approximating a moderately severe Muscle Group XIV injury.

4.  For the entire increased rating period from July 11, 2007, the left leg GSW residuals have not more nearly approximated a severe Muscle Group XIV injury.

5.  For the entire increased rating period from December 29, 2008, the GSW scars have been characterized by six scars, four of which are painful.

6.  For the entire increased rating period from December 29, 2008, the GSW scars have not been characterized by five or more scars that are unstable and/or painful.

7.  A permanent and total disability rating for the service-connected PTSD with depression is in effect as of August 9, 1994. 


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 100 percent for PTSD with depression have been met for the initial rating period from August 9, 1994 to July 11, 2007.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130 (in effect from November 7, 1996), 38 C.F.R. § 4.132 (in effect prior to November 7, 1996), Diagnostic Code 9411 (in effect before and after November 7, 1996).  

2.  Resolving reasonable doubt in favor of the Veteran, the criteria for an increased disability rating of 30 percent, but no higher, for left leg gunshot wound residuals have been met for the entire increased rating period from July 11, 2007.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.55, 4.56, 4.59, 4.73, Diagnostic Code 5314 (2015).

3.  Resolving reasonable doubt in the favor of the Veteran, the criteria for an increased disability rating of 20 percent, but no higher, for the gunshot wound scars have been met for the entire increased rating period from December 29, 2008.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015).

4.  The criteria for an effective date of August 9, 1994 for the award of basic eligibility for dependents educational assistance under 38 U.S.C.A., Chapter 35 have been met.  38 U.S.C.A. §§ 3501, 5110 (West 2014); 38 C.F.R. §§ 3.400, 21.3020, 21.3021 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.          38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings.  See Dingess/Hartman v. Nicholson,	 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).    

In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Board is granting a 100 percent schedular disability rating for PTSD with depression for the initial rating period from August 9, 1994 to July 11, 2007, which is a complete grant of all benefits sought on appeal with respect to this issue; therefore, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist with respect to this issue.  Further, the Board is remanding the issue of entitlement to a TDIU for additional development. 

The appeal for an earlier effective date for basic eligibility for DEA benefits arises from the August 2010 rating decision granting a 100 percent schedular disability rating for PTSD with depression and DEA benefits; therefore, any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 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); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement).  

With respect to the issues of increased disability ratings for the left leg GSW residuals and GSW scars, in this case, notice was provided to the Veteran in October 2007 and January 2009, prior to the initial adjudication of the claims in February 2008 and March 2009.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates.  Thus, the Board concludes that VA satisfied its duties to notify the Veteran.

VA satisfied its duty to assist the Veteran in the development of the claims.  First, VA satisfied its duty to seek, and assist in the procurement of, relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA treatment records, private treatment records, Social Security Administration (SSA) disability records, VA examination reports, and lay statements.       

Second, VA satisfied its duty to obtain a medical opinion when required.  See        38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  With respect to the service-connected left leg GSW residuals and GSW scars, the Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in February 2009, May 2010, October 2011, and September 2013.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Indeed, even when the adequacy is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).       

In an August 2009 written statement, the representative contended that the February 2009 VA examination was inadequate.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant challenging the expertise of a VA physician must "set forth the specific reasons . . . that the expert is not qualified to give an opinion."  Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010).  That has not happened in this case.  The representative superficially claimed the VA examination was "inadequate" without providing any reasons for the contention.  The Board finds that the February 2009 VA examiner was competent and qualified through education, training, and experience to perform an adequate VA examination and offer medical diagnoses, statements, and opinions.  See Cox, 20 Vet. App. 563.          

In the March 2013 remand, the Board found that the results of the October 2011 VA examination were inconsistent with the other examination reports of record that tended to show a more severe muscle injury and remanded for another VA examination, which was conducted in September 2013.  The subjective and objective findings recorded in the September 2013 VA examination are comparable to the findings of the February 2009 and May 2010 VA examination reports in terms of severity of muscle injury.  As such, the Board will not rely on the October 2011 VA examination report's findings (reflecting a minor muscle injury) in assessing the current nature and severity of the left leg GSW residuals.  

The Board finds that the February 2009, May 2010, and September 2013 VA examination reports are thorough and adequate and provide a sound basis upon which to base a decision with regard to the issues of increased ratings for the left leg GSW residuals and GSW scars.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted physical examinations, and specifically addressed the symptoms and impairment listed in the relevant criteria in the potentially applicable diagnostic codes.  

The Veteran was offered an opportunity to testify at a hearing before the Board, but declined.  As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.  

Disability Rating Laws and Regulations

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015).  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1 (2015).  

Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2 (2015).  Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Where, as in this case with respect to the issue of a higher initial rating for PTSD with depression, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board has considered, and found inappropriate, the assignment of staged ratings for any part of the initial rating period from August 9, 1994 to July 11, 2007.

Where, as in this case with respect to the issues of increased disability ratings for the left leg GSW residuals and GSW scars, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  The Board has considered, and found inappropriate, the assignment of "staged" ratings for any part of the increased rating periods.

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2015).  Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, the U.S. Court of Appeals for Veterans Claims (Court) has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14 (2015).  In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions.

Initial Rating for PTSD

The Veteran is in receipt of a 70 percent initial disability rating for the PTSD with depression under Diagnostic Code 9411 from August 9, 1994 to July 11, 2007 (the day the claim for service connection for PTSD was received by VA).  The Veteran is in receipt of a (maximum) 100 percent schedular disability rating for PTSD with depression from July 11, 2007.  As such, the remaining issue on appeal is an initial disability rating in excess of 70 percent for the initial rating period from August 9, 1994 to July 11, 2007.

During the pendency of this appeal, the regulations pertaining to rating mental disorders were amended, effective November 7, 1996.  See 38 C.F.R. § 4.130.  Under the criteria of 38 C.F.R. § 4.132, Diagnostic Code 9411, in effect prior to November 7, 1996 (the "old" rating criteria), a 100 percent rating was warranted: where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; or with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or for demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132 (1996).  The Court has held that the criteria for a 100 percent schedular rating under the regulations in effect prior to November 7, 1996 provides three independent bases for assignment of a 100 percent schedular rating for a psychiatric disorder.  See Johnson v. Brown, 7 Vet. App. 95, 97-99 (1994).

Under 38 C.F.R. § 4.130, in effect from November 7, 1996 (the "new" rating criteria), a 70 percent disability rating is assigned 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 that is 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 worklike setting); and inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.

A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name.  Id.

In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating.  The Board has considered the symptoms indicated in the rating criteria as examples of symptoms "like or similar to" the psychiatric symptoms in determining the appropriate schedular rating assignment, and has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for the psychiatric disorder.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit held that "a veteran may only qualify for a given disability rating under	 § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that	 "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id.

Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission.  The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a) (2015).  Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Within the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM IV), one factor for consideration is the Global Assessment Functioning (GAF) score, which is a scale ranging from 1 to 100 and reflecting "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).  However, while the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130.  

GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work).  GAF scores from 61 to 70 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 generally functioning pretty well, with some meaningful interpersonal relationships.  GAF scores ranging from 51 to 60 reflect 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).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job).  GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work).  DSM-IV at 46-47.  

Throughout the course of the appeal, the Veteran has contended generally that the PTSD with depression has been manifested by more severe symptoms than those contemplated by the 70 percent initial disability rating assigned for the initial rating period from August 9, 1994 to July 11, 2007.  In a February 2009 written statement, the Veteran contended that he was entitled to a 100 percent disability rating for PTSD.  In a September 2013 written statement, the representative contended that the Veteran was entitled to a 100 percent disability rating for PTSD with depression from August 9, 1994 because he had been granted SSA benefits based on the mental disorder and was psychiatrically hospitalized at the time the initial service connection claim was filed.  See also December 2014 written statement.

After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from August 9, 1994 to July 11, 2007, the PTSD with depression has been manifested by total occupational and social impairment, and symptoms that more nearly approximate the criteria for a 100 percent disability rating under Diagnostic Code 9411 under both the "old" and "new" rating criteria.   

VA treatment records associated with the claims file note that the Veteran has reported, throughout the relevant appeal period, irritability, angry outbursts, mistrust of others, marital relationship problems, flashbacks, avoidance of thoughts, feeling, and situations, decreased interest in activities, restricted affect, chronic sleep impairment with recurrent distressing dreams, hypervigilance, depression, and increased startle response.  The Veteran was voluntarily psychiatrically hospitalized three times from 1993 to 1995.  A February 1993 treatment record notes that the Veteran reported heightened startle response, being angered easily, difficulty sleeping, and recent and remote memory loss, as well as that he had unable to keep a job since service separation and that he and his spouse were currently separated.

A January 1994 VA treatment record notes that the Veteran reported "starting to lose it with [his] kids" and "grab[bing] them like they are adults."  The Veteran reported becoming more volatile around his children and feared losing control.  Hospitalization was recommended to readjust the Veteran's sleep cycle and help him gain control over angry impulses.  An April 1994 VA treatment record notes that the Veteran was hospitalized and psychiatrists were trying to find a medication regimen that would stabilize his psychiatric symptoms.  The treatment record notes that the Veteran was having great difficulty controlling his anger and had asked to be transferred to a locked ward where someone could help control his hostility.  The Veteran reported previously coping with anger by starting fights with others.  The April 1994 VA treatment record notes that the Veteran was severely industrially impaired and was not able to be around people without feeling violent.  See also August 1994 written statement from a VA psychologist.

VA treatment records note that the Veteran was psychiatrically hospitalized from July to August 1994.  A July 1994 VA treatment record notes that the Veteran reported increased and frequent angry outbursts, intense anxiety, difficulty sleeping, depression, avoidance and withdrawal symptoms, and  increased stress and fighting at home.  An October 1994 SSA disability determination notes that the Veteran was disabled due to anxiety-related impairment (PTSD) that caused both marked restriction of activities of daily living and marked difficulty in social functioning.  

An October 1994 VA treatment record notes that the Veteran spent six days in jail that month for aggression towards a police officer.  A December 1994 VA treatment record notes that the Veteran had previously been arrested three times, including twice for assault and battery.  The Veteran reported only having two friends, staying home and not visiting others, and preferring to be alone because he "doesn't trust others."  The Veteran's affect was flat and mood was depressed.  The Veteran reported smelling diesel fuel (olfactory hallucination) as well as hearing voices (auditory hallucinations).  The VA treatment record notes that the Veteran presented significant psychosocial problems and a GAF score of 45 was assigned.

A February 1995 VA treatment record notes that the Veteran reported almost daily suicidal thoughts as well as a suicide attempt two months prior.  The Veteran reported homicidal ideation when angry, angry outbursts towards his spouse including breaking a new set of china and destroying things in the home, and sometimes having to leave home because he was afraid of hurting his children.  The Veteran reported difficulty concentrating and memory impairment including forgetting peoples' names (including his spouse's name) on occasion.  The Veteran reported that he and his spouse had been separated eight times in three years.  A May 1995 VA treatment record notes that inpatient psychiatric hospitalization was again recommended and the Veteran was an emotionally hostile person.  

At an August 1995 VA mental disorders examination, the Veteran reported that his emotions problems continue to worsen.  The VA examiner noted that the Veteran appeared depressed, had difficulty communications with speech impairment, was very anxious, nervous, and short-tempered, and continued to have mood swings, anger, severe flashbacks, nightmares, and bad dreams.  The VA examiner further noted that the Veteran was forgetful, had poor concentration, and answered questions in a delayed manner.  A diagnosis of "very severe" PTSD was rendered. 

March 1997 VA treatment records note that the Veteran was voluntarily psychiatrically hospitalized for three days before leaving against medical advice due to a family situation.  VA treatment records note that the Veteran reported hitting his spouse twice in the previous six months as well as experiencing nightmares, flashbacks, insomnia, and suicidal and homicidal ideations.   

March and April 1997 VA treatment records noted that the Veteran was voluntarily readmitted to the hospital for psychiatric treatment and received in-patient psychiatric treatment for two to three weeks.  The Veteran reported difficulty trusting others, irritability, paranoid ideation, depression, anxiety, mood swings, past violence towards his spouse, and auditory hallucinations.  

At an April 1998 VA mental disorders examination, the Veteran reported discomfort in crowds, avoiding family gatherings, diminished interest in significant social activities, feelings of detachment, being unable to trust people other than family members, and irritability resulting in conflict with his spouse.  The VA examiner opined that the Veteran had mild to moderate PTSD and assigned a GAF score of 60 to 65.

There is a gap in the evidence of record with regard to psychiatric treatment between 1998 and 2007.  However, a December 2007 VA treatment records notes that the Veteran reported ongoing depressed mood that had been persistent for years.  A January 2009 VA treatment record notes that the Veteran reported a history of assaulting a police officer and trying to get him to shoot him approximately four years prior as well as being arrested twice in 2001 for disorderly conduct.  

Further, a May 2010 VA PTSD examination report notes that the Veteran reported continuous PTSD symptoms since 1992.  The Veteran reported trying to ignore or self-medicate his psychiatric symptoms with limited success (which accounts for the gap in treatment records available for review).  The Veteran reported that the PTSD symptoms impact the quality of his family and social relationships, level of activity and engagement, and ability to work with people.  The VA examiner opined that the quality of the Veteran's life have been significantly impaired due to PTSD. 

Based on the above, the Board finds that, for the initial rating period from August 9, 1994 to November 7, 1996, the PTSD with depression manifested demonstrable inability to obtain or retain employment.  For the initial rating period from August November 7, 1996 to July 11, 2007, the PTSD with depression has more nearly approximated total occupational and social impairment due to such symptoms as memory loss, avoidance of crowds, depression, anxiety, irritability, hypervigilance, poor attention and concentration, intrusive thoughts, auditory and olfactory hallucinations, grossly inappropriate behavior, impaired impulse control with periods of violence, angry outbursts, suicidal and homicidal ideation, intermittent inability to perform activities of daily living, difficulty in adapting to stressful circumstances including work or a worklike setting, impaired judgment, disturbances in mood, and inability to establish and maintain effective work and social relationships.  As such, the Board finds that the PTSD with depression more nearly approximates the criteria for a 100 percent (maximum) schedular disability rating under Diagnostic Code 9411 under both the "old" and "new" rating criteria.  38 C.F.R. §§ 4.3, 4.7, 4.130 (in effect from November 7, 1996), 4.132 (in effect prior to November 7, 1996).

The Board has weighed and considered the GAF scores during the initial rating period, which have ranged widely from 45 to 65.  The general characterization of overall impairment due to psychiatric disorders suggested by the assignment of a GAF score of 65 (purporting to indicate some mild symptoms) is inconsistent with, and outweighed by, the more specific and detailed social and occupational impairment and symptoms the Veteran has actually experienced during the course of the appeal, as reflected in both lay reports and clinical findings of symptoms and degree of occupational and social impairment.  The Board finds that the Veteran's GAF scores, when read together with the other evidence of record, reflect that, for the initial rating period from August 9, 1994 to July 11, 2007, the Veteran experienced severe psychiatric symptoms productive of total occupational and social impairment, more nearly approximating the criteria for a 100 percent (maximum) schedular disability rating under Diagnostic Code 9411.  See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture"); see also 38 C.F.R. §§ 4.130 (in effect from November 7, 1996), 4.132 (in effect prior to November 7, 1996); DSM-IV at 46-47.  

Increased Rating for Left Leg GSW Residuals 

The Veteran is in receipt of a 10 percent disability rating for left leg GSW residuals under 38 C.F.R. § 4.73, Diagnostic Code 5314 for moderate impairment of Muscle Group XIV.  The function of Muscle Group XIV is extension of the knee and simultaneous flexion of the hip and flexion of the knee and pertains to muscles arising from the anterior thigh group, including the vastus internus (i.e., the vastus medialis).  Under Diagnostic Code 5314, a noncompensable rating is assigned when the muscle impairment is slight, a 10 percent rating is assigned when the muscle impairment is moderate, a 30 percent rating is assigned when the muscle impairment is moderately severe, and a 40 percent rating is assigned when the muscle impairment is severe.  See 38 C.F.R. § 4.73. 

Muscle group damage is categorized as mild, moderate, moderately severe, and/or severe, and rated accordingly.  38 C.F.R. § 4.56.  Disability of a muscle group is based on impaired joint motion and its ability to perform its full work.  Principal symptoms are weakness, fatigability, coordination, swelling, deformity, and atrophy.  The principal factors are impairment of delicate coordination, strength of scar bound muscles, and lowering of fatigue threshold.  Skin scars are incidental and negligible but allow for envisaging the whole track of the missile, including any bony or nerve involvement.  It is the deep intra-and inter-muscular scarring that is disabling.  Through-and-through or other wounds of the deep structure almost invariably cause scarring so that muscles pull against other muscles causing incoordination and loss of strength.  Prolonged exertion brings about fatigue and pain, thus interfering with function.  38 C.F.R. §§ 4.47, 4.48, 4.49, 4.50, 4.51, 4.54 (2015).  For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56(c).

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 effective 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.  38 C.F.R. § 4.56(d).   

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.  Id.  

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.  Id.

For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.  Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Although pain may cause a functional loss, pain itself does not constitute functional loss.   Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Throughout the course of the appeal, the Veteran has contended generally that the left leg GSW residuals have been manifested by more severe symptoms than those contemplated by the 10 percent disability rating assigned.  In a July 2007 written statement, the Veteran requested an increase disability rating for the service-connected muscle condition because it had worsened.  See also March 2009 written statement (Veteran contended that the GSW residuals and scars as well as the associated pain had worsened).  In an April 2009 written statement, the representative contended that the Veteran should be awarded a higher disability rating because he has at least two to three scars that are deep with some scars adherent to the underlying tissue with obvious loss of muscle as well as other subcutaneous tissue.  

In an August 2009 written statement, the representative contended that the 10 percent disability rating assigned for the left leg GSW residuals did not adequately take into account the functional loss associated with the disability per Deluca.  The representative contended that the symptoms and impairment, including as due to pain, associated with the left leg GSW residuals severely affected the Veteran's motion and ability to accomplish activities of daily living.  The representative noted that the Veteran has constant pain that is worse with ambulation causing an antalgic gait as well as obvious loss of muscle and other subcutaneous tissue.  The representative contended that the evidence of record reflects consistent complaints of loss of power, weakness, lowered threshold for fatigue after average use, fatigue-pain, impairment of coordination, and uncertainty of movement.  In a November 2013 written statement, the representative contended that a minimum a 30 percent disability rating was warranted based on the severity of the GSW injury as reflected in the service treatment records.  

Initially, the Veteran is separately service connected for left leg GSW scars under Diagnostic Code 7804 (painful scars).  As discussed in detail below, the Board is granting a 20 percent increased disability rating under Diagnostic Code 7804 based on six GSW scars, four of which are painful.  The pain attributable to the separately service-connected and rated scars may not also be used to assign a rating for the left leg GSW residuals under Diagnostic Code 5314 because to do so would violate the rule against pyramiding because it would result in rating the same symptoms under different diagnostic codes and compensating the Veteran twice for the same symptoms.  See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261 (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition).  As such, the Board will not discuss the painful GSW scars in determining whether a higher disability rating is warranted under Diagnostic Code 5314 for the left leg GSW residuals.  

After a review of all the evidence, lay and medical, the Board finds that, for the entire increased rating period from July 11, 2007, the left leg GSW residuals more closely approximate moderately severe impairment of Muscle Group XIV, which is commensurate with a 30 percent disability rating under Diagnostic Code 5314.  

As the historical background of the muscle injury is pertinent to the applicable rating criteria, service treatment records reflect that the Veteran sustained a medial distal thigh gunshot wound with vascular injury from an M-16 rifle (.223 caliber bullets) that discharged during cleaning while deployed during Desert Storm in February 1991.  The Veteran was transported (air evacuated) to the emergency room.  Examination of the lower left extremity at the time of the injury revealed left thigh entrance and exit wounds with transection of the left femoral artery, absent distal pulses, and loss of motor/sensor functions.  

In February 1991, the Veteran underwent a debridement, interposition vein graft reconstruction of the distal left femoral artery from a right saphenous ankle vein donor site.  Subsequently in February 1991, the Veteran underwent lower extremity fasciotomies and skin fusion with partial wound closure and debridement.  Following the surgeries, February 1991 service treatment records note multiple dressing changes to the left thigh/leg with minimal drainage and no infection observed. 

Later in February 1991, the Veteran was transported to another military hospital for further treatment.  A February 1991 radiological report of the left thigh notes no evidence of fracture and subcutaneous emphysema posteriorly and laterally on the lower third thigh, status post surgical debridement.  March 1991 service treatment records note that the left thigh wound continued to heal with healthy granulation of titus and no purulent drainage and the Veteran was ambulatory with crutches numerous times per day.

In March 1991, the Veteran underwent a surgery for placement of a split thickness skin graft from the right anterior thigh to the right medial and lateral thigh wounds.  On post-operative day eight, the Veteran left for convalescent leave for three weeks and returned in April 1991, at which time the grafts remained intact.  Upon return from convalescent leave, the wound looked good with donor site healing and continued physical therapy was recommended.  April 1991 hospital discharge reports note that greater than 90 percent of the grafts had taken.  April 1991 hospital reports note that the Veteran continued to have decreased range of motion on extension of the left lower extremity and recommended that the Veteran continue with aggressive physical therapy and undergo a medical/physical evaluation board.    

A September 1991 addendum hospital report (while the Veteran was awaiting a physical evaluation board) notes that range of motion of the left lower extremity continued to improve and the Veteran was able to walk with very minimal difficulty, but must sit down after standing for one hour after which he gets swelling and pain in the left thigh and distal left lower extremity.  The Veteran also reported pain in the left distal thigh with running.  

Upon physical examination in September 1991, the Veteran's left leg wounds were noted to be well healed and neurovascularly intact except for hypersensitivity over the distal groin wound.  No evidence of venous insufficiency was noted, Doppler venous examination was noted as essentially normal, and the left dorsalis pedis and posterior tibialis pulses were easily palpable and strong.  The September 1991 addendum hospital report notes that the Veteran was able to flex his knee from 0 to 90 degrees, which was an improvement from previous examinations.  

The September 1991 report notes that the Veteran was evaluated by a vascular surgeon who felt that both the arterial and venous systems were essentially normal with no indications of further vascular intervention.  Compression stockings were recommended to address the Veteran's history of ankle swelling with prolonged standing.  Diagnoses of (1) status post accidental gunshot wound to the left thigh, requiring repair of left superficial femoral artery with reversed autologous saphenous vein, no evidence of complications and (2) status post-split thickness skin graft to left thigh wounds, no evidence of complications were rendered.  

A February 1992 service treatment record notes that the Veteran reported increased left hip/thigh pain.  The service treatment record notes 20 centimeter scars present on the medial and lateral side of the left thigh and that the left lateral thigh was tender to palpation.  A February 1992 physical evaluation board report notes that the Veteran had persisting weakness and loss of complete flexion of the left lower extremity.  The physical evaluation board determined that the Veteran was unfit to reasonably perform the duties of his rank because of left thigh pain and recommended he be separated from active service.  The Veteran was subsequently discharged from service in April 1992.  

A May 1992 VA treatment record notes that the Veteran reported constant pain at the distal left thigh, knee, and lower leg associated with the extensive soft tissue injury from the in-service gunshot wound.  The treatment record notes that the skin grafts at the medial and lateral left thigh wounds and left calf fasciotomies were all healed with no erythema or swelling at the left lower extremity and normal range of motion of the left ankle and knee.  A diagnosis of residuals, extensive left thigh soft tissue injuries was rendered.  A July 1992 VA treatment record notes that the Veteran continued to report left thigh pain. 

VA treatment records dated throughout the appeal period note that the Veteran consistently reported left leg pain.  A February 2005 VA treatment record notes an external left lateral thigh deformity with a hyperesthetic scar with no focal weakness.  An assessment of left lower extremity neuropathic pain was rendered.  A February 2005 VA radiographic report notes no evidence of fracture or dislocation of the left femur.  An impression of normal left femur was rendered.  A December 2007 VA treatment record notes that the Veteran reported continued left lower extremity pain since the in-service GSW.  

January 2009 VA treatment records note that the Veteran reported pain, itching with resultant redness, and lack of feeling in the left leg.  The treatment records note left lower leg spasms in the back of the leg as well as left thigh spasms.  Erythema across the left anterior tibial area and some desquamation were also noted.  In a January 2009 written statement, the Veteran reported taking pain medication due to the GSW residuals and that the left leg itches all the time.

The February 2009 VA examination report notes a through and through GSW that entered laterally above the Veteran's knee and exited medially that required a skin graft to both the medial and lateral aspects.  The VA examiner noted obvious muscle loss over the medial and lateral distal thigh.  The Veteran reported constant muscle pain in the left lower extremity, specifically in the thigh, knee, and calf, that is worse with ambulation and standing as well as constant pain posteriorly in the right thigh that is worse with walking 100 feet or standing for 10 minutes.  The Veteran reported difficulty working because he requires analgesic medications.  The VA examiner noted that, in terms of muscle injury, the Veteran did not have any flare-ups.  The VA examiner noted that the Veteran's muscle pain does not impact his activities of daily living, but that the Veteran reported being unable to work because of residuals of the GSW injury.  The Veteran denied any bony injury.  

Upon physical examination at the February 2009 VA examination, the VA examiner noted that the circumference of the Veteran's left thigh above the knee was 43 centimeters (excluding the depressed scar areas), compared with 46 centimeters on the right.  The VA examiner noted that the Veteran walked with a cane and an antalgic gait.  The VA examiner noted normal muscle strength when flexing at the knee (5/5) and slightly reduced muscle strength in knee extension and flexion (4+/5).  The VA examiner diagnosed muscle loss of both Groups XIV and XV related to the GSW, possible claudication of the left calf from arterial injury, and residual severe pain in the left posterior distal thigh.  

The February 2009 VA examiner noted three depressed scars that are adherent to the underlying tissue with obvious loss of muscle as well as other subcutaneous tissue, specifically, (1) a scar of the medial distal lower extremity above the ankle with some loss of subcutaneous tissue, (2) extensive scarring to the distal right medial thigh with painful depressed scar adherent to underlying tissue with obvious loss of subcutaneous tissue, and (3) a scar of the distal lateral thigh with both protruding muscle from fascial injury as well as depressed scar with marked tenderness in the depressed area with loss of muscle and subcutaneous tissue.  With respect to the depressed scars on the medial and lateral distal left thigh, the Veteran reported that, if he walks more than 100 feet, he develops cramping, aching pain in his left calf.  The Veteran reported this pain is present much more quickly if he attempts to walk up a hill, which he avoids as much as possible due to difficulty.  

An April 2009 VA treatment record notes that the Veteran reported constant lower left extremity pain that is never completed relieved by pain medication, which has worsened as he has aged.  The Veteran reported aggravating factors of walking, stairs, bending, lifting, and leg movement with easing factors of laying down, elevating the leg, and massage.  The treatment record notes that the Veteran had sustained a GSW that penetrated the lateral thigh and exited the medial thigh with an eight by three inch wound at the medial thigh and a five by two inch wound at the lateral thigh.  Tenderness at the medial/lateral hamstrings and thigh was noted upon physical examination.  Deep tendon reflexes in the lower extremity were noted to be slightly reduced (1+).  Muscle strength testing revealed reduced muscle strength in the left lower extremity, specifically 3+ hip flexion, 4- knee extension, 4+ knee flexion, 5 dorsiflexion, 5 toe extension, 4- hip abduction, and 3+ hip adduction.  (5 reflects normal muscle strength.)  Sensation to light touch for the left lower extremity anterior and lateral thigh was intact.

A March 2010 VA treatment record notes flat reflexes to the left patella and Achilles as well as deep muscle scars on the thigh and calf.  An August 2011 VA treatment record notes some spasm in the left leg muscle.  December 2010, April 2011, February 2013, and July 2014 VA treatment records note that the Veteran reported chronic moderate left leg/thigh pain since the 1991 in-service GSW requiring the use of pain medication.  

The May 2010 VA examination report notes that the Veteran sustained a GSW in the left leg during service that required three surgeries resulting in scarring, muscle damage, and functional impairment.  The Veteran reported constant moderate to severe pain in the left lower thigh, knee, and lower leg.  The Veteran reported weekly flare-ups that last for hours and are precipitated by prolonged walking, over exertion, rain, and cold and are alleviated by rest and medication, as well as severe functional impairment because of the pain level that causes him to be unable to stand more than 20 minutes, squat down, lift, or climb stairs.  The Veteran reported being unable to work because of constant pain, being unable to drive or use a clutch for driving, and being unable to stand for longer than 20 minutes.

The VA examiner noted the GSW had been caused by a single large caliber, high velocity missile/bullet that resulted in a through and through injury with associated fasciotomy that resulted in intermuscular scarring.  The Veteran reported current left leg symptoms of pain, decreased coordination, increased fatigability, weakness, uncertainty of movement, numbness, tingling, itching, and sensitivity to touch.  The VA examiner noted that the scarring associated with the left leg GSW was extensive with two deep scars.

The September 2013 VA examination report notes that the left leg GSW muscle injury reflected entrance and exit scars indicating track of missile through one or more muscle group as well as ragged, depressed, and adherent scars indicates wide damage to muscle groups in the missile track.  Some loss of deep fascia with palpation showing loss of deep fascia as well as some loss of muscle substance was also noted.  The VA examiner noted left side Group XIV symptoms of fatigue-pain consistent at a more severe level, occasional impairment of coordination, and occasional uncertainty of movement.  The VA examination report notes 5/5 (normal) muscle strength in all muscle groups tested and no muscle atrophy.  The VA examiner further noted that there was no x-ray evidence of retained metallic fragments in any muscle group.  The deep, non-linear scars were noted to have an approximate total area of 192 square centimeters.   

Based on the above, the Board finds that, for the entire increased rating period from July 11, 2007, the left leg GSW residuals have been manifested by a through and through muscle injury by a single large caliber, high velocity missile with associated fasciotomy and skin graft surgeries, intermuscular scarring, pain, entrance and exit scars indicating track of missile through one or more muscle group, ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track with deep scars that are 192 square centimeters and result in moderate functional impairment due to pain, some loss of deep fascia, some loss of muscle substance, consistent fatigue-pain at a more severe level, occasional impairment of coordination, occasional uncertainty of movement, some diminished sensation, and some reduced muscle strength in the lower extremity, more nearly approximating a moderately severe Muscle Group XIV injury.  As such, and resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent disability rating under Diagnostic Code 5314 for the left leg GSW residuals is warranted.  38 C.F.R. §§ 4.3, 4.7, 4.73a.    

The Board further finds that the weight of the lay and medical evidence demonstrates that the criteria for a disability rating in excess of 30 percent have been met or more nearly approximated for any part of the increased rating period from July 11, 2007.  The Board finds that the left leg GSW residuals have not more nearly approximated severe impairment of Muscle Group XIV, as needed for a higher (40 percent) disability rating under Diagnostic Code 5314.  While the left leg GSW residuals have been manifested by some residuals contemplated by a severe disability of the muscle, specifically ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track and consistent fatigue-pain at a more severe level, the Board finds that the left leg GSW residuals more closely approximate a moderately severe muscle injury.

The service treatment records do not reflect that the initial left leg GSW resulted in a shattering bone fracture or open comminuted fracture requiring extensive debridement, prolonged infection, or sloughing of soft parts.  The service treatment records reflect that, after the initial surgeries, the left leg injury healed well and without infection.  April 1991 hospital discharge reports note that greater than 90 percent of the skin grafts had taken.  While the Veteran was hospitalized, the Board finds that the service department records do not reflect a prolonged period of hospitalization.  Rather the service treatment records reflect that the initial injury and surgery occurred in February 1991.  In March 1991, the Veteran underwent surgery for placement of a skin graft and, after eight days of recovery, went on convalescence leave for three weeks.  When the Veteran returned in April 1991, the wound looked good with the donor site continuing to heal.

The evidence of record does not reflect soft flabby muscles in the wound area or that the muscles harden abnormally in contraction.  While there is some loss of muscle strength and occasional impairment of coordination and uncertainty of movement associated with the left lower extremity, the evidence of record does not reflect severe impairment of function in strength, endurance, or coordinated movements compared with the right (uninjured) side.  See e.g., February 2009 and September 2013 VA examination reports.  X-rays also do not reflect multiple scattered foreign bodies in the left lower extremity or adhesion of scar to the bone with epithelial sealing over the bone rather than true skin covering.  See September 2013 VA examination report.  Nor is there atrophy of muscle groups not in the track of the missile.  See 38 C.F.R. § 4.56(d).   

The Board has considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See also DeLuca.  Here, there is no question that the Veteran's left leg GSW residuals have caused pain, weakness, fatigue-pain, incoordination, and uncertainty of movement, which has restricted overall motion; however, as noted above, after taking into account the additional functional limitation due to pain, weakness, and lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement, the evidence of record does not support a finding that the Veteran has had significant limitation of motion of the left lower extremity.  As such, the degree of functional impairment does not warrant a higher rating based on limitation of motion.

Finally, the evidence of record reflects that the GSW tracked through multiple muscle groups, specifically muscle groups XV and XIV.  See February 2009 VA examination report.  The Board finds that separate ratings cannot be assigned under both muscle groups as to do so would compensate the Veteran twice for the same symptomatology, including symptoms of fatigue-pain and the deep scars associated with the left leg GSW residuals.  See Esteban at 262; 38 C.F.R. § 4.14.  

For the reasons discussed above, the Board finds that the Veteran's disability picture is more nearly analogous to the criteria for a 30 percent moderately severe muscle disability, as reflected by the symptoms and the level of impairment caused by the left leg GSW residuals; therefore, resolving reasonable doubt in favor of the Veteran, a disability rating of 30 percent, but no higher, for the left leg GSW residuals is warranted for the entire initial rating period from July 11, 2007.  See 38 C.F.R. §§ 4.3, 4.7.

Increased Rating for GSW Scars

The Veteran is in receipt of a 10 percent disability rating for the service-connected GSW scars under 38 C.F.R. § 4.118, Diagnostic Code 7804.  Under Diagnostic Code 7804, a 10 percent rating is warranted for 1 or 2 scars that are unstable or painful.  A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful.  A 30 percent disability rating is warranted for 5 or more scars that are unstable or painful.  Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars.  38 C.F.R. § 4.118.

Throughout the course of the appeal, the Veteran has contended generally that the service-connected GSW scars have been manifested by more severe symptoms than contemplated by the 10 disability rating assigned.  In a January 2009 written statement, the Veteran reported using three different creams on the scar tissue.  In a March 2009 written statement, the Veteran reported that the scars and associated pain was worsening.  In an August 2009 written statement, the representative contended that the Veteran's GSW scars warrant a much higher rating than the 10 percent rating currently assigned. 

The February 2009 VA examination notes five areas of scars related to the left leg GSW.  The Veteran reported a constant itching and aching sensation of the scar over the medical aspect of the right ankle (the site of a vein graft), decreased sensation and itchiness in the scars on the left lower extremity both medially and laterally, no significant problems associated with the skin graft donor site on the left anterior thigh, and constant pain and sensitivity in the depressed scars on the medial and lateral distal thigh.  The following diagnoses with respect to the GSW scars were rendered: (1) scar of the medical distal lower extremity above the ankle with some loss of subcutaneous tissue and mild tenderness in that area, (2) scar from skin graft site on the left anterior thigh with no functional loss of importance, (3) lateral linear scar of the left lower extremity below the knee of no significant functional impairment, (4) medical longitudinal scar on the left lower extremity below the knee of no functional importance, (5) extensive scarring of the distal right medial thigh with painful depressed scar adherent to underlying tissue with obvious loss of subcutaneous tissue with moderate functional impairment due to pain, and (6) scar of the distal lateral thigh with both protruding muscle from fascial injury as well as depressed scar with marked tenderness in the depressed area with loss of muscle and subcutaneous tissue, severe tenderness.  

The May 2010 VA examination report notes two areas of scarring associated with the left leg GSW, specifically scars located on the left thigh and left inner aspect of the thigh.  With respect to the scarring, the VA examiner noted that the scarring is extensive and has hollow areas with no skin breakdown over the scars.  The Veteran reported pain and numbness and severely decreased and absent sensation associated with some parts of the scarring.  The VA examiner noted that there were no other disabling effects other than pain associated with the scars.  The VA examination report notes problems with lifting and carrying and decreased strength in the lower extremity due to pain and that the scars interfere with grooming.  

At the September 2013 VA examination, the Veteran reported continued pain over the upper leg wounds with associated itching of the lower leg and that he fell three to four times when walking in the house over the previous year.  The VA examination report notes four painful scars of the extremities with sensitivity related to underlying muscle damage.  The VA examiner noted five scars associated with the GSW residuals, specifically deep scars at the left lateral thigh and left medial thigh and superficial scars at the left anterior lateral calf, left medial calf, and right distal medial lower leg.  The VA examination report notes that the superficial scars of the right lower extremity had an approximate total area of 13 square centimeters, the superficial scars of the left lower extremity had an approximate total areas of 3.5 square centimeters, and the deep nonlinear scars of the left lower extremity had an approximate total area of 192 quare centimeters.  The VA examiner noted that none of the scars result in limitation of function.     

For the entire increased rating period, the GSW scars have been characterized by six scars, four of which are painful.  After a review of all the evidence, both lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent disability rating, but no higher, under Diagnostic Code 7804 for the service-connected GSW scars is warranted for the increased rating period from December 29, 2008.  38 C.F.R. §§ 4.3, 4.7, 4.118.  

The Board further finds that the weight of the lay and medical evidence demonstrates that the criteria for a disability rating in excess of 20 percent have not been met or more nearly approximated.  The Board finds that the GSW scars have not been characterized by five or more scars that are painful, any unstable scars, or any scars that are both painful and unstable (as necessary for a higher and maximum 30 percent disability rating under Diagnostic Code 7804).  38 C.F.R. § 4.118.  Review of the February 2009, May 2010, and September 2013 VA examination reports does not reflect any clinical findings indicating that any of the GSW scars are unstable.  The September 2013 VA examination report makes a specific finding that none of the scars are unstable (i.e., with frequent loss of covering of skin over the scar) nor are any of the scars both painful and unstable.  See also May 2010 VA examination report (noting no signs of skin breakdown associated with the scars).      

The Board also finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to scars.  In an August 2009 written statement, the representative contended that the Veteran's service-connected scars were erroneously rated under Diagnostic Code 7804 and instead should be rated under Diagnostic Code 7801 (deep scars, not of the head, face, or neck, that are deep and nonlinear).  The representative contended that the evidence of record reflects deep scars that easily exceed at least 320 square centimeters (equivalent to a 20 percent disability rating under Diagnostic Code 7801).

Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters).  A 20 percent rating requires an area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters).  A 30 percent rating requires an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters).  A 40 percent rating requires an area or areas of 144 square inches (929 square centimeters) or greater.  A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck.  Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying tissue damage.  Id.

As discussed in detail above, the Board is granting a 30 percent disability rating for a moderately severe Muscle Group XIV injury based, in part, on the deep, intermuscular scarring associated with the left leg GSW.  38 C.F.R. § 4.56(d) specifically lists "intermuscular scarring" as one of the factors VA should consider when determining the level of severity of a muscle injury - i.e., whether a muscle injury resulted in moderately severe disability.  As such, the deep scars associated with the GSW residuals may not also be used to assign a rating under Diagnostic Code 7801 because to do so would constitute pyramiding.  See Esteban at 262; 38 C.F.R. § 4.14.  Moreover, as noted above, in this case, the deep GSW scars cover approximately 192 square centimeters, see September 2013 VA examination report, which would warrant a 20 rating under Diagnostic Code 7801; therefore, in this case, Diagnostic Code 7801 does not allow for a higher rating than the 30 percent disability rating assigned under Diagnostic Code 5314 or the 20 percent rating assigned under Diagnostic Code 7804.  

Further, Diagnostic Code 7800 provides for evaluation of burn scar(s), scar(s), or other disfigurement of the head, face or neck.  38 C.F.R. § 4.118.  Here, the scars at issue are located on the Veteran's lower extremities; therefore, Diagnostic Code 7800 is not for application.

Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater warrant a (maximum) 10 percent rating.  Ten percent is the only rating assignable under Diagnostic Code 7802.  Note (2) under that code provides that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity.  38 C.F.R. § 4.118.  The evidence of record does not reflect that the Veteran has superficial, nonlinear scars in an area of 929 square centimeters or greater.  See February 2009 and September 2013 VA examination reports.  Further, as discussed in detail above, the Board has granted a 20 percent disability rating under Diagnostic Code 7804 for the painful scars located on the left lower extremity; thus, Diagnostic Code 7802 does not allow for a higher rating. 

Finally, Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code.  Id.  The Board finds that a higher rating is not warranted under Diagnostic Code 7805 based on other appropriate diagnostic codes based upon any other disabling or other effects.  Id.  The September 2013 VA examiner noted that none of the GSW scars result in limitation of function.  The May 2010 VA examiner also noted no other disabling effects other than pain associated with the scars.  While the February 2009 VA examiner notes moderate functional impairment associated with the scarring on the distal right medial and distal lateral thighs, the VA examiner specifically notes this functional impairment is due to pain.  The evidence of record does not establish any symptoms or effects of the service-connected scars other than pain.  Further, as discussed in detail above, any such functional impairment other than pain has already been considered and attributed to the left leg GSW residuals.  See Esteban, supra; 38 C.F.R. § 4.14.   

Extraschedular Consideration

Initially, the assignment of a 100 percent rating for the PTSD with depression for the initial rating period from August 9, 1994 to July 11, 2007 represents the maximum benefit available for this disability based on the disability ratings schedule.  See 38 U.S.C.A. § 1155.  As such, an extraschedular rating for the PTSD with depression under 38 C.F.R. § 3.321(b) cannot result in a greater benefit; therefore, any consideration of this theory of entitlement with respect to the PTSD with depression is moot.  38 U.S.C.A. § 7104.

With respect to the issues of increased disability ratings for the left leg GSW residuals and GSW scars, the Board has considered whether referral for an extraschedular rating would have been warranted for any part of the rating period.  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  Therefore, initially, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  
38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the left leg GSW residuals and GSW scars are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The left leg GSW residuals have been manifested by a through and through muscle injury by a single large caliber, high velocity missile with associated fasciotomy and skin graft surgeries, intermuscular scarring, pain, entrance and exit scars indicating track of missile through one or more muscle group, ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track with deep scars that are 192 square centimeters and result in moderate functional impairment due to pain, some loss of deep fascia, some loss of muscle substance, consistent fatigue-pain at a more severe level, occasional impairment of coordination, occasional uncertainty of movement, some diminished sensation, and some reduced muscle strength in the lower extremity.  The GSW scars have been manifested by six scars, four of which are painful.

The schedular rating criteria specifically provide for disability ratings based on injuries of different muscle groups (here Diagnostic Code 5314 for Muscle Group XIV), criteria for evaluation the level of impairment based on history and current residuals (see 38 C.F.R. § 4.56), and for associated scars, including functional impairment (Diagnostic Codes 7800 to 7805).  Further, the schedular rating criteria, Diagnostic Code 7804, specifically provide for disability ratings based on painful scars.  In this case, comparing the disability level and symptomatology of the left leg GSW residuals and GSW scars to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  In this case, there is neither allegation nor indication 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.  

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.               38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life.  In the absence of exceptional factors associated with the left leg GSW residuals or GSW scars, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Earlier Effective Date for DEA Benefits 

Finally, the Veteran also appeals for an effective date prior to July 11, 2007, for the grant of eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C.A., Chapter 35, based upon the contention, discussed above, that he is entitled to a 100 percent schedular disability rating for the service-connected PTSD with depression from August 9, 1994 (the date the claim for service connection for PTSD was received by VA).

For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability.  38 U.S.C.A. §§ 3501, 3510 (West 201438 C.F.R. §§ 3.807(a), 21.3021 (2015).  Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation.  38 U.S.C.A. § 5113.

In this case, entitlement to DEA benefits has been established from July 11, 2007.  See August 2010 rating decision.  As discussed in detail above, pursuant to this decision, the Board grants a 100 percent schedular disability rating for the service-connected PTSD with depression effective August 9, 1994 (the date the service connection claim for PTSD was received by VA).  The evidence of record reflects that the Veteran was discharged from service under honorable conditions and has a permanent total service-connected disability.  As such, the Board finds that the Veteran is entitled to an effective date of August 9, 1994 for the grant of entitlement to DEA benefits.  38 U.S.C.A. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021.    

Further, the Board finds that the Veteran is not entitled to an effective date prior to August 9, 1994 for the grant of entitlement to DEA benefits.  Because the Veteran has not been shown to be in receipt of a total disability rating prior to August 9, 1994, entitlement to DEA benefits cannot be granted prior to this date. The evidence fails to show any basis other than total disability for which he would be entitled to DEA benefits, thus August 9, 1994, is the earliest date for which such entitlement is warranted.  As such, VA regulations do not provide for an effective date earlier than the date the Veteran was awarded a total disability rating - i.e., August 9, 1994.  


ORDER

A 100 percent initial disability rating for PTSD with depression, for the period from August 9, 1994 to July 11, 2007, is granted.

A 30 percent increased disability rating for left leg gunshot wound residuals is granted.

A 20 percent increased disability rating for gunshot wound scars is granted.
 
An earlier effective date of August 9, 1994 for the award of basic eligibility for dependents educational assistance under 38 U.S.C.A., Chapter 35 is granted.


REMAND

TDIU

In a March 2009 rating decision, the AOJ denied entitlement to a TDIU.  In August 2009, the representative expressed disagreement with the denial of a TDIU.  In an August 2010 rating decision, the AOJ found that the issue of TDIU was mooted following the grant of a 100 percent schedular disability rating for PTSD with depression.  

As discussed in detail above, the Veteran is currently in receipt of a 100 percent schedular disability for PTSD with depression, effective August 9, 1994.  Assignment of a total schedular rating does not automatically render a TDIU claim moot.  See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) (West 2014) by having an "additional" disability of 60 percent or more ("housebound" rate)).  In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent rating where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect.  Under those circumstances, there was no "duplicate counting of disabilities."  Bradley, 22 Vet. App. at 293.  

VA has a "well-established duty" to maximize a claimant's benefits.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley, supra.  This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation under 38 U.S.C.A § 1114.  See Bradley at 294 (finding that special monthly compensation "benefits are to be accorded when a veteran becomes eligible without need for a separate claim").  Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.  See id.

Special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015).

Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute.  The Court declared, however, if a veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone.  Buie, 24 Vet. App. at 250.

In this case, the Veteran has been assigned a 100 percent schedular disability rating for PTSD with depression effective August 9, 1994.  The Veteran is also service connected for left leg GSW residuals, rated as 10 percent disabling effective May 1, 1992 and 30 percent disabling effective July 11, 2007; and GSW scars, rated as 0 percent disabling effective May 1, 1992 and 20 percent disabling effective from December 29, 2008.  These ratings combine to 10 percent disabling for the period from August 9, 1994 to July 11, 2007, 30 percent disabling from July 11, 2007 to December 29, 2008, and 40 percent disabling for the period from July 11, 2007.  38 C.F.R. § 4.25 (2015).  Thus, the Veteran is not already entitled to special monthly compensation payable at the housebound rate.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).    

The evidence for the entire rating period from August 9, 1994 (after the Veteran was granted the 100 percent disability rating for PTSD) some of the evidence of record indicates that the Veteran may unable to secure and follow a substantially gainful occupation solely by reason of the service-connected left leg GSW residuals (separate from the impairment caused by the PTSD with depression for which a 100 percent disability rating has been assigned).  See May 2010 VA muscles examination report ("the Veteran is unemployable for both physical and sedentary" employment due to the service-connected GSW, left thigh with residual muscle weakness and loss of flexion), and May 2010 PTSD examination reports ("impairment from PTSD is separate from the impairment related to the physical effects of the gunsho[t] wound to the leg").

Further, the representative has specifically asserted that the Veteran is unable to maintain substantially gainful employment due only to the service-connected GSW residuals and scars.  See August 2009 written statement; see also January 2009 application for increased compensation based on unemployability (on a VA Form 21-8940).  As such, the grant of the 100 percent disability rating does not necessary render moot the issue of a TDIU based only on impairment caused by the service-connected left leg GSW residuals.  See Bradley, supra.

Any written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement.  38 C.F.R. § 20.201 (2015).  Generally a notice of disagreement must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office.  In that case, the notice of disagreement must be filed with the VA office which has jurisdiction over the applicable records.  38 C.F.R. § 20.300 (2015).    

The Board finds that the August 2009 written statement from the representative is a timely filed notice of disagreement to the denial of TDIU in the March 2009 rating decision, which was not mooted by the grant of a 100 percent schedular disability rating for the service-connected PTSD with depression.  As the notice of disagreement was filed prior to March 24, 2015, it was not required to be on a specific form.  Cf. 38 C.F.R. § 20.201(a)(1) (2015).  Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board.  Manlincon v. West,	 12 Vet. App. 238 (1999).  Consequently, the Board must remand the issue of entitlement to a TDIU based only on impairment caused by the service-connected left leg GSW residuals for further procedural action.     

Accordingly, the issue of entitlement to a TDIU based only on impairment caused by the service-connected left leg GSW residuals is REMANDED for the following action:

The AOJ should issue a statement of the case that addresses the issue of entitlement to a TDIU based only on impairment caused by the service-connected left leg GSW residuals.  The Veteran should be informed that, in order to perfect an appeal of this issue to the Board, a timely and adequate Substantive Appeal following the issuance of the statement of the case must be filed.

The Veteran 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 2014).



______________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs