Citation Nr: 1636578 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 10-26 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome (IBS). 2. Entitlement to an increased rating for residuals of an injury to Muscle Group III, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of this hearing is associated with the claims file. In June 2013 and November 2015, the Board remanded these claims for further development. The issue of entitlement to service connection for IBS is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected chest muscle strain with shoulder pain has been manifested by no worse than moderately severe disability of Muscle Group III. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for the service-connected residuals of an injury to Muscle Group III have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.73, Diagnostic Code 5303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a July 2009 letter. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts relating to the Veteran's increased rating claim have been properly developed, and all evidence necessary for resolution of the increased rating appeal has been obtained. The Veteran's private and VA medical records have been obtained. She has been afforded VA examinations relating to the increased rating claim. The Board has reviewed the examination reports and finds they are adequate because the examiners reviewed the claims file; discussed the Veteran's pertinent medical history and current complaints; physically examined the Veteran; reported all findings in detail; and provided rationale in support of the conclusions reached. The Veteran was provided a March 2011 Board hearing that complied with the requirements set forth in 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488 (2010). This matter was previously before the Board in June 2013 and November 2015, at which time it was remanded for the AOJ to conduct further development. The Board finds substantial compliance with the remand directives as to the Veteran's increased rating claim. Stegall v. West, 11 Vet. App. 268 (1998). As such, VA has satisfied its duties to notify and assist. II. Increased Rating Claim A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether staged ratings are appropriate. Muscle injuries are evaluated pursuant to 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b). The specific bodily functions of each group are listed in 38 C.F.R. § 4.73. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Under Diagnostic Codes 5301 to 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, and severe. Under Diagnostic Code 5303 pertaining to Muscle Group III (nondominant side), slight muscle disability warrants a 0 percent rating, moderate muscle disability warrants a 20 percent rating, moderately severe muscle disability warrants a 20 percent rating, and severe muscle disability warrants a 30 percent rating. The Board notes that the Veteran's right upper extremity is her dominant extremity, and her service-connected muscle group is on her left (nondominant) side. See January 2016 VA Examination Report. The type of disability associated with a slight muscle disability is a simple wound of muscle without debridement or infection. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and 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)(2). The type of injury associated with a moderately severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe disability of muscles is a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Objective findings of a severe disability would include 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, a severe injury would also show x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). The Board notes that section 4.56(d), which sets forth classification of muscle injuries as slight, moderate, moderately severe or severe, employs a totality-of-the-circumstances test, and no single factor is controlling in determining the rating for a muscle injury. See Tropf v. Nicholson, 20 Vet. App. 317, 325 (2006). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which a claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Evaluation of the same disability under several diagnostic codes, or pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In March 2009, the Veteran filed a claim for an increased rating for her service-connected residuals of injury to Muscle Group III, on her left side, currently rated as 20 percent disabling. The Veteran has reported muscle cramps in her left chest along with shoulder pain, fatigue, and limited motion. See October 2009 Statement. During service, the Veteran pulled the muscles of the left chest when she picked up water containers. She has continued to have frequent chest pain, and takes naproxen and tramadol. In an August 2009 VA examination, the examiner noted the Veteran's chest muscle strain in Muscle Group III. The examiner noted that there was no history of hospitalization, surgery, or debridement, no history of trauma to the muscles, no through-and-through injury, and no decreased coordination or uncertainty of movement. There was no loss of deep fascia or muscle substance. The chest muscles were normal and symmetrical in comparison to the right side. The examiner found pain, increased fatigability, weakness, and flare-ups every two to three weeks causing increased pain. The examiner found tenderness to palpation, and limitation of motion in that forward flexion was limited to 140 degrees with pain and abduction was limited to 125 degrees with pain. The examiner found significant effects on work through decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, and pain, resulting in the assignment of different duties along with increased tardiness and absenteeism. The examiner opined that there were no effects on the Veteran's grooming, toileting, dressing, bathing, and feeding activities, mild effects on shopping, moderate effects on traveling and exercise, and severe effects on recreation and chores. A November 2011 VA treatment record suggests the Veteran had painful movement of her shoulder past 90 degrees. In other statements and treatment records, the Veteran described sharp chest pains which impact her ability to breathe. See October 2009 Statement; February 2010 Private Treatment Record; March 2010 Private Treatment Record. The Veteran underwent VA examination again in January 2016. The Veteran reported that she has sharp, left-sided upper chest pain that spreads into her shoulder once weekly if she has to lift more than 15 pounds, that she cannot lift above shoulder level, and that she takes pain medication. She reported that she has a permanent profile restricting lifting to less than 40 pounds, that she tries to lift no more than 15 pounds, and that she has to work more slowly due to muscle pain. The examiner noted the Veteran's injury to the intrinsic muscles of shoulder girdle, pectoralis major and deltoid. The examiner found that the Veteran did not have any scar associated with a muscle injury or any evidence of fascial defects associated with any muscle injuries. The examiner noted that the Veteran's muscle injury did not affect muscle substance or function. The examiner found consistent loss of power, consistent weakness, lowered threshold of fatigue, and fatigue-pain. Muscle strength testing was normal, and the Veteran did not have muscle atrophy. The examiner found the Veteran's left anterior chest wall was tender to palpation. Upon range of motion testing, the Veteran had forward flexion range to 170 degrees without pain, abduction range to 110 degrees after repetition with pain in the left upper chest, external rotation to 60 degrees without pain, and internal rotation to 50 degrees without pain. The examiner specifically considered the Veteran's treatment records noting sharp chest pains. After reviewing the evidence, examining the Veteran, and considering the Veteran's statements, the examiner opined that the Veteran's functional impairment was moderate. The Board finds that, considering the type and history of the injury in conjunction with the current manifestations, the evidence tends to show that the Veteran's disability picture more nearly approximates a moderate or at most moderately severe muscle injury, as opposed to a severe muscle injury. See 38 C.F.R. §§ 4.56, 4.7. The probative evidence does not show a through-and-through injury, decreased coordination, uncertainty of movement, or loss of deep fascia or muscle substance. Muscle strength testing was normal. The January 2016 VA examiner opined that while there was some limitation of motion, weakness, pain, and fatigue, the Veteran's functional impairment from her muscle disability was moderate. Viewing the evidence as a whole, the Board finds that the Veteran's symptomatology more nearly approximates a moderate or moderately severe injury to Muscle Group III. As the preponderance of the evidence is against the assignment of a rating higher than 20 percent, the benefit-of-the-doubt rule does not apply, and the claim is denied. Extraschedular Considerations The Board has also considered the application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 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. 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. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the symptomatology related to the Veteran's service-connected Muscle Group III disability. She has described symptomatology involving pain and limitation of motion. The Board notes, however, that the manifestations of her disability, to include pain, weakness, and other functional limitations, are clearly contemplated by the schedular criteria. The Board has considered the Veteran's limitation of motion, pain, and all other factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) in considering her current rating. The ratings assigned contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced. In this case, however, there are no additional symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record indicates that the Veteran continues to work full-time. The issue of entitlement to a TDIU is therefore not raised by the record. ORDER Entitlement to a rating in excess of 20 percent for residuals of an injury to Muscle Group III is denied. REMAND The November 2015 Board remand instructed that the AOJ schedule the Veteran for an examination to determine whether the Veteran had a current diagnosis of a gastrointestinal disorder, to include irritable bowel syndrome, that was related to service or caused by or aggravated by the Veteran's service-connected disabilities, to include her medications for those disabilities. A VA examination was conducted in January 2016. The Veteran reported that her gastrointestinal issues began in service, when she had constipation during basic training. After examination and review of the record, the examiner opined that the Veteran did not have a current diagnosis of a gastrointestinal condition. The examiner explained that the Veteran did not follow up on her May 2005 gastrointestinal complaint, and that there were no other medical entries of bowel concerns until February 2014. However, the evidence of record shows multiple entries of bowel concerns during that time period. See, e.g., December 2012 VA Treatment Record (Veteran complains of constipation); November 2012 Private Treatment Record (Veteran complains of constipation); April 2012 VA Treatment Record (Veteran complains of constipation); June 2010 VA Treatment Record (Veteran complains of constipation); September 2009 VA Treatment Record (Veteran reports no diarrhea since yesterday); April 2009 VA Treatment Record (Veteran complains of bowel movement urges); May 2008 VA Treatment Record (Veteran complains of constipation); April 2008 VA Treatment Record (notes system concerns of Inflammatory Bowel Disease, Intestinal Vascular Abnormality, and Invasive Gastroenteritis). Thus, the VA examiner's review appears based on an incomplete review of the record and an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has reduced probative value). The January 2016 examiner also opined that the Veteran's claimed condition was less likely than not due to or the result of the Veteran's service-connected disabilities. The examiner acknowledged that the Veteran's medications for her service-connected muscle injury can produce indigestion, diarrhea, and/or constipation, but opined that it was highly unlikely that any or all of the medications would give rise to a chronic, permanent gastrointestinal disorder. Since the examiner did not appear to consider the Veteran's multiple gastrointestinal complaints, it seems appropriate that this question also should be revisited. This will also provide an opportunity to discuss whether the Veteran's service-connected disabilities, to include her medications, aggravated any gastrointestinal disorder. Accordingly, additional medical opinions as detailed below should be sought. While this matter is on remand, updated VA treatment records should be obtained and associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file any outstanding, pertinent VA treatment records from January 2016 to the present. 2. Afford the Veteran an opportunity to identify any pertinent private treatment records that are not currently associated with the claims file. Such identified records should be sought. 3. After associating any pertinent, outstanding records with the claims file, refer it to an individual with appropriate expertise who is asked to review the record, identify all gastrointestinal disorders present and then opine as to whether it is at least as likely as not that the disorder manifested in service or is otherwise related to service. For each such diagnosis, the examiner is also asked to opine as to whether the disorder was caused by or aggravated by the Veteran's service-connected disabilities, to include the medication taken for her service-connected disabilities. In so opining, the examiner should consider all pertinent lay and medical evidence, to include the August 2001 service treatment record which diagnosed gastroenteritis during the Veteran's pregnancy, the September 2003 VA treatment record in which the Veteran reports that ibuprofen hurts her stomach, the May 2005 and August 2014 VA treatment records which provide an indication of irritable bowel syndrome and gastritis, the October 2009 statement in which the Veteran reports that she has constipation and that her medications cause constipation, the October 2013 private treatment record noting the Veteran uses Aleve, and the July 2014 VA treatment record instructing that the Veteran avoid NSAIDs due to gastrointestinal symptoms. If it is necessary to examine the Veteran to obtain the requested opinions, that should be arranged. A detailed rationale for all opinions given should be provided. 4. Thereafter, readjudicate the claim on appeal. If the benefit sought is not granted in full, provide the Veteran and her representative with a supplemental statement of the case. Allow an appropriate opportunity to respond thereto before returning the matter to this Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs