Citation Nr: 1612514	
Decision Date: 03/28/16    Archive Date: 04/07/16

DOCKET NO.  06-29 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to a disability rating in excess of 30 percent for gunshot wound (GSW) residuals of the abdominal region (Muscle Group XIX) with muscle damage and thoracic kyphosis, for purposes of accrued benefits.

2.  Entitlement to a disability rating in excess of 20 percent for gunshot wound (GSW) residuals of the lumbar region (Muscle Group XX) with muscle damage, for purposes of accrued benefits.

3.  Entitlement to an effective date earlier than December 31, 2002, for the grant of a total disability rating based upon individual unemployability due to service-connected disability (TDIU), for purposes of accrued benefits.

4.  Entitlement to dependency and indemnity compensation (DIC) of service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310.  

5.  Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318.  
REPRESENTATION

Appellant represented by:	Barbara J. Cook, Attorney


ATTORNEY FOR THE BOARD

C. Fields, Counsel


INTRODUCTION

The Veteran served on active duty from September 1943 to November 1945.  He died in July 2005.  The appellant in this case is the Veteran's surviving spouse.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from October 2005, June 2006, October 2007, and December 2007 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

As pertinent to the issues currently on appeal, in October 2005, the RO denied service connection for the cause of the Veteran's death.  In June 2006, the RO denied accrued benefits, finding that there were no pending claims at the time of the Veteran's death.  The RO subsequently noted, however, that several claims were pending at the time of death, which were addressed in subsequent rating decisions.  In October 2007, the RO denied an increased rating for the two GSW ratings and a separate rating for thoracic kyphosis, for accrued purposes.  In December 2007, the RO denied an earlier effective date in August 1994 for TDIU, for accrued purposes. 

In an August 2008 decision, the Board denied these increased rating claims, including entitlement to a separate rating for kyphosis, and an earlier effective date for TDIU, for accrued purposes; as well as service connection for the cause of the Veteran's death; among other issues that are not currently on appeal.  

The appellant appealed from the August 2008 Board decision to the U.S. Court of Appeals for Veterans Claims (Court).  In a July 2010 memorandum decision, the Court partially vacated the Board's decision and remanded the increased rating issues for the two GSW residual disabilities; the earlier effective date for TDIU; and two service connection issues, for accrued purposes.  The Court also vacated the issue of service connection for the cause of the Veteran's death, and recharacterized it as entitlement to Dependency and Indemnity Compensation (DIC).  The Court affirmed the remainder of the Board's August 2008 decision.  

In April 2011, the Board denied the vacated service connection issues of celiac disease/sprue and right lower extremity peripheral neuropathy, for purposes of accrued benefits.  The appellant did not further appeal from those denials; thus, they are no longer under the Board's jurisdiction and will not be addressed herein.  

Also in April 2011, the Board remanded the other vacated issues on appeal, in order to comply with the Court's directives.  In particular, the Board remanded the two increased rating claims for GSW residuals for consideration of whether a higher rating was warranted under 38 C.F.R. § 4.55, as in effect prior to July 3, 1997.  

The Court also held in July 2010 that the Board erred in concluding that a separate rating for thoracic kyphosis was not warranted, as the Court found that pyramiding was not implicated.  See memorandum decision at p.5.  Thus, the Board stated in the April 2011 remand that a separate rating must be assigned for the Veteran's thoracic kyphosis; and remanded the question of the appropriate initial rating and effective date for such disability to the RO for initial adjudication for due process.  

Additionally, the Board remanded the issue of entitlement to an effective date earlier than November 5, 2003, for the award of TDIU, as it was inextricably intertwined with consideration of the individual rating issues being remanded.   

Finally, in April 2011, the Board directed the RO to adjudicate the issue of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 (West 2002 & 2015).  In the August 2008 Board decision, as well as prior rating decisions by the RO, the appellant's claim for DIC had been denied based on service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310 (West 2002 & 2015).  In July 2010, the Court recharacterized the issue on appeal as entitlement to DIC, and stated that this issue was inextricably intertwined with the other issues addressed by the Court.  The Board stated in its April 2011 remand that the basis for the Court's conclusion in this regard was unclear, but in light of the recharacterization of the issue on appeal and the arguments by the appellant's attorney before the Court, it appeared that she was seeking DIC benefits pursuant to 38 U.S.C.A. § 1318.  This provision allows for DIC benefits where a veteran's service-connected disabilities were continuously rated as totally disabling, including based on a TDIU, for at least 10 years immediately preceding death.  Because this is a different type of DIC benefit, and is dependent on the underlying claim for an earlier effective date for TDIU, for accrued purposes, it was remanded to the RO for initial adjudication.  

In a June 28, 2011, rating decision, with notice to the appellant and her attorney on July 1, 2011, the RO denied entitlement to DIC under 38 U.S.C.A. § 1318.

In a June 30, 2011, rating decision, the RO implemented the grant of service connection (or separate rating) for thoracic spine kyphosis; notice was provided to the appellant and her attorney on January 6, 2012.  The RO assigned an initial rating of 20 percent, effective January 26, 1993; and a rating of 40 percent, effective December 31, 2002; for such disability, for accrued purposes.  The RO also granted an effective date of December 31, 2002, for the TDIU award, for accrued purposes.  

On June 29, 2011, and again in March 2012, the RO provided a supplemental statement of the case (SSOC) as to entitlement to a higher rating for GSW residuals of Muscle Groups XIX and XX, for accrued purposes, as stated on the first page of this decision, including consideration of the prior version of 38 C.F.R. § 4.55.  The March 2012 SSOC also addressed the issue of an earlier effective date for a TDIU.  These issues remain on appeal and return to the Board for further review.  

Neither of these SSOCs addressed entitlement to a higher initial rating or earlier effective date for kyphosis, or for entitlement to DIC under sections 1310 or 1318.

Meanwhile, in July 2011, after receiving the July 1, 2011, notice of the denial of DIC benefits under § 1318, the appellant's attorney submitted arguments that the RO had not yet adjudicated the underlying issues that were required, as directed by the Board, to determine if the criteria for § 1318 benefits were met.  The attorney argued that RO had failed to adjudicate the issues of entitlement to separate or higher ratings for the Veteran's kyphosis and muscle injuries, for accrued purposes, which she noted would result in a 60 percent combined rating to meet the schedular threshold criteria for a TDIU under 38 C.F.R. § 4.16(a); and whether an effective date in August 1994 was warranted for the TDIU award, for accrued purposes.  Although it is apparent that the attorney had not yet received notice of the June 30, 2011, rating decision or SSOC for these issues, she appears to have argued that § 1318 benefits were improperly denied, i.e., disputed the denial.  

Then, in January 2012, after notice of the June 30, 2011, rating decision was provided, the attorney argued that an effective date in August 1994 should be awarded for the TDIU, for accrued purposes.  She stated that, "with that grant, the appeal will be satisfied and there will be no need to send the case to the Board."  

In April 2012, the appellant's attorney submitted a SSOC response and indicated that no there was no further evidence or information to submit.  The attorney stated that, once her attorney fee had been remitted, the case should be sent to the Board for review of the merits of the case.  The attorney fees were remitted in May 2012, and the case was certified to the Board in 2015 with regard to the issues addressed in the March 2012 SSOC.  See VA Form 8 (2015).  No other communication was received from the appellant or her attorney until a January 2016 appellate brief.  

In her January 2016 arguments to the Board, the attorney again asserted that an effective date in August 1994 was warranted for the TDIU; and that accrued benefits and DIC should be awarded in keeping with the 1994 effective date.  The attorney noted that the Veteran's claim began in 1990, he stopped working in August 1994, and the RO had granted an effective of December 31, 2002, for the TDIU award, for accrued purposes.  The attorney also asserted that the appellant had pursued DIC and accrued benefits since the Veteran's death in 2005.  

The Board observes that, in the initial notice of disagreement in November 2005, as well as the substantive appeal in September 2006 regarding the October 2005 RO denial of DIC based on service connection for the cause of the Veteran's death, the appellant's attorney made arguments regarding § 1318, not cause of death.  Again, this issue had not yet been adjudicated, and it was not adjudicated until after the last Board remand.  In the 2011 rating decision, the RO noted that the appellant's initial claim for DIC benefits in 2005 constituted a claim for any and all death benefits.  In this regard, a claim by a surviving spouse for death compensation, pension, or DIC generally will be deemed to include a claim for accrued benefits, and vice versa.  38 U.S.C.A. § 5101 (West 2002 & 2014); 38 C.F.R. § 3.152 (2004 & 2015). 

Under the unique circumstances of this case, to include the Court's 2010 issue recharacterization and directives, the Board finds that the submissions by the appellant's attorney in July 2011 and April 2012 should be construed as a timely notice of disagreement with the denial of benefits under 38 U.S.C.A. § 1318, within one year of notice of the rating decision that denied that claim.  See 38 C.F.R. §§ 20.200-20.302 (2011 & 2014) (regarding the requirements for an appeal); cf. 38 C.F.R. § 20.201 (2015) (as amended, effective March 24, 2015, to require a notice of disagreement to be filed on a standard VA form when supplied). 

In contrast, the claims file does not include any communication that may be construed as a notice of disagreement with the downstream issues of the initial (staged) rating or effective dates assigned for the Veteran's kyphosis, for accrued purposes.  Id.; see also Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).   Again, this determination was issued in a June 2011 rating decision, with notice to the appellant and her attorney in January 2012.  In fact, in the 2012 and 2016 submissions to the RO and the Board, respectively, the appellant's attorney relied, in part, on the 20 percent rating that the RO had awarded for kyphosis, effective in 1993, and the resulting threshold rating as relevant to a schedular TDIU, to support her argument for entitlement to an effective date for TDIU in August 1994.  Moreover, the attorney had argued in July 2011 that a minimum rating of 20 percent should be assigned for kyphosis; this was accomplished in the June 30, 2011, rating decision, of which the attorney was later notified.  The appellant has not argued otherwise, or suggested that either of these downstream issues for the award of service connection (or a separate rating) for kyphosis, for accrued purposes, is on appeal.  Accordingly, this issue was fully granted, and it is no longer on appeal.  Id.

Although the Court did not identify any deficiencies in the Board's prior determination as to service connection for the cause of the Veteran's death in its July 2010 memorandum decision, the Court vacated that issue and stated that it was inextricably intertwined with the other claims.  As such, the Board remanded this issue to the RO in April 2011, along with the other issues on appeal; however, no development was directed or required upon remand to the RO, and no additional evidence was received.  Further, the neither the appellant nor her attorney has made arguments concerning this issue since the Court's July 2010 remand.  Thus, although an SSOC was not provided for this issue, none is required, and the Board may proceed with adjudication of this issue without prejudice to the appellant.
 
The issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  GSW residuals of the abdominal region (Muscle Group XIX) resulted in no more than moderately severe disability from abdominal wall muscle damage.

2.  The service-connected GSW residuals of the lumbar region (Muscle Group XX) result in no more than moderate disability from lumbar region muscle damage.

3.  Separate service-connected compensation was awarded for abdominal scar, peritoneal adhesions, kyphosis, lumbar region scar, and left anterior crural (femoral) nerve neuropathy, as associated with lumbar and abdominal GSW residuals.

4.  The Veteran's GSW residuals of the abdominal region and lumbar region are in the same anatomical region but do not act on the same joint, and the most severely injured muscle group (MG XIX) is no more than moderately severe, individually.  

5.  The Veteran was gainfully employed at the time of receipt of his application for increased disability ratings in April 1990, and until September 15, 1994.

6.  The Veteran's claim for a TDIU was part and parcel of his underlying of appeal of the assigned disability ratings and his report of being unemployed since 1994. 

7.  The Veteran met the schedular criteria for a TDIU as of January 1993, with a "single" disability of 60 percent for TDIU purposes, in light of the additional award of disability compensation for kyphosis, and other disabilities incurred in action.  

8.  The Veteran's service-connected disabilities did not render him unable to maintain gainful employment consistent with his prior education, training, and work history at any time prior to December 31, 2002, to include within the one year prior.

9.  The Veteran died in July 2005, with a principal cause of death of myocardial infarction and contributing significant condition of asthma; such conditions developed many years after service and were not incurred or aggravated by a disease or injury in service, to include his GSW and residuals.

10.  The service-connected disabilities at the time of the Veteran's death did not materially contribute to death, combine to cause death, aid or lend assistance to the production of death, or impair his health to an extent that would render him materially less capable of resisting the effects of the primary cause of death.


CONCLUSIONS OF LAW

1.  The criteria for an increased individual rating in excess of 30 percent for GSW residuals of the abdominal region (Muscle Group XIX) with muscle damage, have not been met, for purposes of accrued benefits.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.1000, 4.3, 4.7, 4.55, 4.56, 4.72 (prior to July 3, 1997), 4.73, Part 4, Diagnostic Code 5319 (1996 & 2015).

2.  The criteria for an increased individual rating in excess of 20 percent for GSW residuals of the lumbar region (Muscle Group XX) with muscle damage, have not been met, for purposes of accrued benefits.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.1000, 4.3, 4.7, 4.55, 4.56, 4.72 (prior to July 3, 1997), 4.73, Part 4, Diagnostic Code 5320 (1996 & 2015).

3.  The criteria for a single rating in combination of 50 percent, pursuant to 38 C.F.R. § 4.55, for GSW residuals of Muscle Groups XIX and XX, to replace the separate 20 and 30 percent ratings for muscle damage of the abdomen and lumbar region; have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.1000, 4.55, 4.73, Part 4, Diagnostic Codes 5319 & 5320 (1996 & 2015).

4.  The criteria for an effective date prior to December 31, 2002, for the award of a TDIU have not been met, for purposes of accrued benefits.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.3, 4.16 (2015). 

5.  The criteria for DIC benefits for service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposed certain obligations on VA upon receipt of a claim for benefits.  In a July 2005 letter issued prior to the initial decision on her claims, VA notified the appellant of the information and evidence needed to substantiate and complete her claims, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In a July 2006 SOC, the appellant was further notified of the requirements to establish an effective date and disability rating.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The appellant's claims were subsequently readjudicated on several occasions in SOCs and SSOCs; thus, the timing defect of this post-adjudication notice was cured.  There is also no argument or indication of prejudice due to any possibly notice defects in this case.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

Further, all known and available records relevant to the issues on appeal have been obtained and associated with the claims file.  Adjudication of a claim for accrued benefits purposes is an essentially a legal determination, and the evidentiary requirements differ somewhat from claims for other types of compensation.  In claims for accrued benefits, only the evidence that is of record at the time of the veteran's death will be considered, with the exception of any evidence necessary to complete the application, and any VA or service records that were in existence but had not been associated with the file at the time of death; this is because the latter records are considered, constructively, to already be a part of the record.  See Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993); 38 C.F.R. § 3.1000(d)(4).  In this appeal, the RO's July 2005 letter informed the appellant of VA's responsibility to obtain outstanding VA records, and additional relevant VA medical records have been obtained.  There is no argument or indication that any further development is could help substantiate the claim for service connection for cause of the Veteran's death.  

The Board further observes that its August 2008 decision contained a detailed discussion as to the VCAA, including the above discussion.  Neither the brief filed by the appellant's attorney with the Court, nor the Court's July 2010 memorandum decision, contained any reference to the adequacy of VA's compliance with the VCAA or with the Board's August 2008 discussion thereof.  Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties, and such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992).  Therefore, if there were any substantive concerns as to VA having met its VCAA duties in this case, such would have been raised by the Court or by the appellant's attorney in 2010.  Moreover, there is no indication that a remand for further notice or development would have a reasonable possibility of substantiating the claims; rather, they would only result in unnecessary delay.  


II.  Accrued Benefits

A surviving spouse or other appropriate party will be paid periodic monetary benefits to which a veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid; known as "accrued benefits."  An application for accrued benefits must be filed within one year after the date of the veteran's death.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996).  To be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision."  Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998).  

For accrued benefits purposes, only the evidence that was associated with the claims folder at the time of the veteran's death, meaning evidence in VA's constructive possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, will be considered.  38 C.F.R. § 3.1000(a).  In this case, all VA treatment records up to the date of the Veteran's death were obtained and are in the file.

As the Veteran died in 2005, i.e., after December 16, 2003, the two-year limitation on the receipt of accrued benefits does not apply.  38 U.S.C.A. § 5121(a); Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003).  

In this case, the appellant submitted a timely claim for accrued benefits (via VA 21-534) in 2005, within one year of the Veteran's death, as his surviving spouse.  

As noted in the August 2008 Board decision, claims that were pending and unadjudicated at the time of the Veteran's death in July 2005 were entitlement to: (1) service connection for celiac disease/non-tropical sprue; (2) service connection for right lower extremity peripheral neuropathy; (3) a disability rating in excess of 30 percent for GSW residuals of the abdominal region (Muscle Group [MG] XIX) with muscle damage and thoracic kyphosis; (4) a separate disability rating for thoracic kyphosis; (5) a disability rating in excess of 20 percent for GSW residuals of the lumbar region (MG XX) with muscle damage; (6) a disability rating in excess of 10 percent for peritoneal adhesions; (7) an effective date prior to January 31, 1994, for the grant of service connection for left anterior crural femoral neuropathy; and (8) an effective date prior to November 5, 2003, for the grant of a TDIU.  

As the appellant's claim for accrued benefits is derivative of the Veteran's entitlement, the pending claims must be adjudicated on the merits to determine her entitlement.  Only the issues as listed on the first page of this decision, for accrued purposes, remain on appeal, as the other issues were finally addressed previously.   

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Increased Ratings

Disability evaluations are determined by applying of a schedule of ratings based on average impairment of earning capacity; separate rating codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Each disability should be viewed in relation to its history.  38 C.F.R. § 4.1.  If 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 required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities from the same injury if the symptomatology for the conditions are not duplicative or overlapping.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).  

Where entitlement to disability compensation has already been established and an increase in the assigned rating is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Procedural History

In this case, the Veteran's claim of entitlement to increased disability ratings for his service-connected disabilities was received on April 25, 1990.  After multiple remands during the Veteran's life and afterwards, for the purposes of accrued benefits, the remaining issues, for accrued purposes, are entitlement to higher ratings for GSW abdominal disability (MG XIX) and lumbar disability (MG XX).  

Historically, the Veteran was initially awarded a 100 percent rating for his GSW residuals, including perforation of the jejunum and involvement of the lateral and anterior femoral cutaneous nerves on the left; effective from the day after his discharge from service in November 1945 until May 8, 1946.  This rating was then reduced to 30 percent and recharacterized as GSW residuals of the abdominal region (MG XIX), with penetrating muscle damage to the abdominal wall, effective as of May 9, 1946.  See July 1946 and July 1948 rating decisions.  

After this condition was initially recharacterized, the Veteran was awarded a separate rating for peritoneal adhesions associated with his GSW injury, with a 10 percent rating, effective since June 28, 1948.  See July 1948 rating decision.

This condition of GSW residuals to the abdominal region (MG XIX) was subsequently recharacterized to include related kyphosis, and the 30 percent rating was continued.  After the July 2010 Court remand, however, a separate rating was awarded, for accrued purposes, for thoracic spine kyphosis, associated with the MG XIX injury.  Kyphosis was evaluated as 20 percent disabling, effective from January 26, 1993; and 40 percent disabling, effective from December 31, 2002.  

The Veteran's GSW residuals of the lumbar region (MG XX), with muscle damage, was assigned a 20 percent rating, effective since the Veteran's discharge from service in November 1945.  See July 1948 rating decision.  

Thereafter, a separate rating was awarded for neuropathy of the left anterior crural (femoral) nerve, associated with the lumbar region (MG XX) injury, with a 0 percent rating, effective from January 31, 1994; a 10 percent rating, effective from December 8, 1999; and a 30 percent rating, effective from January 2, 2003.  

The Veteran was awarded separate ratings of 10 percent each for tender GSW scars of the abdominal region and of the lumbar region, effective from January 6, 2003.

Service connection was denied, including for accrued purposes as noted above, for celiac disease/non-tropical sprue (gastrointestinal conditions claimed as associated with GSW residuals to the abdominal region); right lower extremity peripheral neuropathy (also claimed as secondary to GSW residuals); as well as bilateral blepharitis (an eye condition) and a dental disability.  Further, claims for service connection and for increased ratings, other than those listed on the first page of this decision, for accrued purposes, were previously denied and not further appealed.  Thus, only the issues as listed on the first page of this decision will be addressed.




Factual Background

In light of the Veteran's multiple disabilities and asserted symptoms, a history of his pertinent symptoms since service is included herein, for accrued purposes.

Service treatment records show that the Veteran sustained a through-and-through type injury via a single .31-caliber bullet during combat in July 1944.  The bullet entered through his lower mid-abdomen, perforated the jejunum, and exited through his lower back just left of midline at ileum level, or at a point 1.5 inches to the left of L3 and L4.  There was muscle damage to the abdominal region (MG XIX) and the lumbar region (MG XX), partial paralysis of the lateral and anterior left femoral cutaneous nerve, and disturbance of the sensory roots of the sciatic nerve on the left side.  X-rays showed no bony pathology.  See, e.g., July 1944 and January 1945 service treatment records; see also December 1979 VA examination report.  

The Veteran had prolonged treatment and hospitalization in service.  A laparotomy was performed in July 1944; two perforations in the jejunum were sutured and "plastic peritonitis" was noted.  The lumbar exit wound was debrided.  The Veteran developed a slight evisceration of the abdominal wound, which was treated; and an exploratory laparotomy was performed due to a pelvic abscess in August 1944, with secondary closure of the abdominal wound.  Wound-related complaints during service included weakness and numbness of the Veteran's left thigh, leg, and foot; a mild, partial intestinal obstruction; stomach cramps; and low back pain.  

After undergoing abdominal surgery, a November 1944 record noted a 9-inch, incisional scar over the left rectus muscle, with no palpable masses.  A January 1945 record noted a 2-inch separation of the recti muscles in the lower part of the abdominal operative incision, with weakness but no definite hernia.  In April 1945, the abdominal wound scar was well-healed, with no evidence of incisional hernia.  

After debridement of the lumbar exit wound, a November 1944 service treatment record described the exit wound as a small scar on the back, to the left of the spine.  In February 1945, X-rays of the lumbosacral spine showed generalized demineralization of the vertebral bodies and pelvis and Schmorl's nodes. 

In November 1945, a Medical Board determined that the Veteran was no longer fit for duty due to weakness in the left leg and the "danger" of an intestinal obstruction caused by the GSW.  He was medically discharged from service in November 1945.  

In his November 1945 service connection claim, the Veteran reported stiffness in his left leg and back pain due to residuals of a rifle bullet wound to the stomach.  

In June 1946, the Veteran underwent VA medical examination to determine the current severity of his service-connected GSW residuals.  He reported occasional pains in his stomach and back.  The examiner observed poorly localized tenderness over the right lower quadrant and right flank.  There was no hernia, abdominal wall weakness, tenderness on palpation, masses, or abdominal disability.  There was a large, hypertrophic, incisional scar over the left rectus muscle, a small incisional scar over the right lower quadrant, and a GSW scar on the left side of the low back.  Range of movement in the back was fairly good with no discomfort.  Motion was slightly restricted on extension and right lateral flexion.  There was no atrophy of any muscle group, except for a subcutaneous depression due to an old boil scar on the lateral aspect of the left lower leg.  There was unphysiological and unanatomical sensory loss in thigh and knee areas, which the examiner described as inconsistent.  The examiner opined that there was no evidence of motor nerve lesions, and there appeared to be an almost complete return of sensation in the Veteran's left lateral femoral cutaneous nerve.  The examiner concluded that the unphysiological sensory loss, fatigue, and insomnia were apparently due to incomplete readjustment.  

At a June 1948 VA examination, there was no evidence of a hernia, abdominal wall weakness, tenderness on palpation, masses, or other abdominal disability.  There was a large, incisional left abdominal scar; and a small, nonsymptomatic scar of the left lumbar region.  X-ray studies of the upper gastrointestinal (GI) tract, including the colon and stomach, with barium enema revealed no abnormalities.

In December 1948, the Veteran was hospitalized with a complaint of pain in the left flank that gradually developed while watching a movie.  After multiple tests and X-rays, he was diagnosed with ureteral colic, probably due to ureteral calculus.  

In October 1979, a private physician opined that the Veteran was totally and permanently disabled from any active gainful occupation due to several disabilities, including poor bowel and bladder control, chronic obstructive pulmonary disease (COPD), progressive numbness in the lower extremities, dependent edema requiring diuretic therapy, and extensive sensory nerve loss in both legs.  

In November 1979, another private physician noted the Veteran's complaints of abdominal pain, numbness in the lower extremities, progressive diarrhea, and weight loss of 27 pounds.  Clinically, he was anemic, his abdomen was slightly distended; there was a 24-centimeter left para-medium incision with a 4 by 4 incisional hernia in the upper third; and deep tendon reflexes of the left knee and ankle were decreased.  The physician's initial impression was that the Veteran had an incisional hernia and neurological deficit as a result of his in-service injuries.  

During a December 1979 VA examination, the Veteran reported that his problems were "mainly his lower extremities due to the fact that there was nerve damage from the gunshot wound."  The examiner noted that the Veteran's original injury was apparently very severe, he was paralyzed in his lower extremities for some time, and during convalescence there was obvious involvement of the left lower sciatic nerve with typical sensory changes.  The Veteran reported that he felt recently that his numbness in the lower extremities, which was now distributed bilaterally, was worsening.  The examiner noted that the Veteran's abdominal problem, although "obviously severe," was not as overbearing to him as his leg problem.  Clinically, the abdominal muscles were thin, and a right ventral hernia affected the right rectus muscle.  A lumbar area scar was described as insignificant with no paraspinal musculature weakness.  Although there was some numbness of the anterior thighs, there was no persistent numbness down the outside of the left leg.  Diagnoses were peritoneal adhesions with a partial obstruction; MG XIX wound, principally involving a ventral hernia of the right rectus muscle; and MG XX wound, manifested by no muscle group involvement but with severe neuropathy due to injury to the nerve roots emerging from the spine.  The examiner also diagnosed the Veteran as having anemia, possibly related to malabsorption.

Private clinical records in June 1983 showed that the Veteran was diagnosed with urethral stricture, bladder stone, sprue, and anemia secondary to sprue.  The Veteran underwent suprapubic cystostomy for a bladder stone, and the operative report noted "very little evidence of a previous inter-abdominal trauma."  A small bowel X-ray series was suggestive of sprue or other diffuse inflammatory bowel disease; a barium enema X-ray revealed no evidence of definite colon abnormality; and a small bowel biopsy was consistent with celiac disease, noted as idiopathic sprue.

During a May 1991 RO hearing, the Veteran testified that he believed that the damage to his muscle groups was really minor compared to what had developed from the gunshot wound.  He testified that his bowel had been resected twice and that he had "short bowel syndrome" as a result of the GSW.  The Veteran believed that his non-tropical sprue was the direct result of his bowel resection, and that his "hump back" was due to the GSW.  He described stomach cramping as occurring infrequently.  The Veteran stated that, despite weight loss and weakness, he continued to work full time as an employee at a VA medical center.  

At an August 1991 VA examination, the Veteran complained of difficulty sleeping due to heartburn, regurgitation, and strangling.  He also reported continued weight loss, dizziness, nausea, generalized weakness, and two to four loose bowel movements per day.  There was a well-healed midline scar with incisional hernia of the abdomen, which the examiner determined was not of sufficient size as to warrant operative intervention.  There was also an enlarged left lobe of the liver and bilateral pitting edema in the legs, compatible with renal disease and malabsorption.  

VA treatment records from May to November 1992 reflected several GI and bowel studies, resulting in diagnoses of a hiatal hernia and findings consistent with sprue.  

The Veteran was afforded several VA examinations in January 1993.  A scar examination report noted a depressed scar that was adherent to abdominal muscles and peritoneum and was not tender to deep palpation.  There was some limitation in the movements of the abdominal muscles due to the adhesions.  The examiner also noted had a thoracic deformity due to kyphosis and scoliosis of the dorsal spine.  

A January 1993 VA cardiovascular examination report diagnosed slight anemia secondary to severe kidney failure and advanced arteriosclerosis.  

A January 1993 VA orthopedic examination diagnosed degenerative joint disease of the spine with osteoporosis, kyphosis, a right rear hump back, and scoliosis to the right.  Physical examination revealed equal reflexes in the lower extremities, and no atrophy of the calves or thighs.  Motor and sensation appeared to be intact.  X-rays showed severe osteoporosis of the lumbar spine and loss of height at L1 and L2.  

In a June 1993 medical opinion, a VA gastroenterologist summarized that the Veteran's main GI problem was celiac disease (or non-tropical sprue), as documented by a 1983 small bowel biopsy.  The gastroenterologist opined that there was no relationship between the Veteran's GSW residuals and this condition.  With respect to the Veteran's assertions of having "short bowel" syndrome, the gastroenterologist noted that a 1983 upper GI series did not document any considerable loss of length of the bowel, and stated that a "short bowel" should not result in impairment of bowel function.  The gastroenterologist also acknowledged the Veteran's history of "reflux esophagitis" type symptoms, and opined that there was no relationship between this condition Veteran's GSW residuals.

At a January 1994 VA examination, the Veteran's abdomen was soft with bowel sounds present.  This examiner found no evidence of vascular injury associated with the GSW, and stated that residuals of the abdominal GSW were a short gut with malabsorption and adhesions of abdominal wall musculature.

At a February 1994 VA orthopedic examination, the Veteran ambulated with a satisfactory gait pattern.  The examiner noted that there was marked kyphosis with some degree of scoliosis noted when standing erect, but no particular spasm or tenderness.  There was a small, faint exit wound scar in the right paravertebral area of the mid-back.  Forward flexion was to 80 degrees, and extension was to 20 degrees.  The Veteran performed a fair heel-and-toe walk and was able to slowly squat and rise again.  There were decreased reflexes in the left knee and a slight decrease in sensation to pinprick over the dorsum of the right foot.  X-rays of the thoracolumbar spine revealed degenerative disease with osteoporosis, kyphosis, and scoliosis.  The examiner opined that any circulatory disorder of the Veteran's legs was not the result of the GSW with injury to the back muscles.

In a May 1995 letter, the Veteran indicated that it was difficult dining out due to dietary restrictions for his sprue.  He also complained of asthma, emphysema, a hump back, severe diarrhea, back pain, and being unable to hear.  The Veteran stated that he "had to take a forced medical retirement" as a result of his ailments.   

A February 1997 VA consultation sheet related to dental care recorded that the Veteran had a service-connected abdominal muscle injury and had developed sprue when the ileum-jejunum was injured.  He reported severe loss of calcium from his bones getting shorter with collapsing vertebrae and problems with his teeth.

During a December 1999 VA orthopedic examination, the Veteran complained of pain mostly between the shoulder blades, and he denied low back pain or radiation of pain.  He reported working as a pharmacist after service until his retirement in 1993 at the age of 68.  On examination, the Veteran ambulated normally and was able to squat and rise without significant difficulty.  The examiner recorded marked thoracic kyphosis, but no paraspinal tenderness, muscle tightness, or atrophy.  There was an old healed and non-tender gunshot exit wound on the left side of the lumbar area.  Forward flexion was to 60 degrees; extension was to 5 degrees; lateral flexion was to 10 degrees, bilaterally; and rotation was to 30 degrees.  Deep tendon reflexes were absent in both knees and ankles, and sensory examination revealed dullness on the L4-5 distribution of the left leg.  The examiner noted that thoracic kyphosis made it difficult for the Veteran to rest his head on a pillow in the supine position.  Examination of the thoracic spine also revealed an unevenness; the right side was at a much higher level than the left side, which the examiner noted was probably due to retraction of the abdominal muscles on the left side and rotation of the spine.  The examiner stated that the Veteran was independent in his activities of daily living and could ambulate without the assistance of a device.  He was not observed to be in any discomfort during the examination.  X-rays showed severe generalized osteoporosis, with a reduction in the height of vertebrae and kyphoscoliosis.  The impressions were thoracic kyphosis, thoracolumbar scoliosis, chronic thoracic spine pain due to kyphosis, and status post GSW to the abdomen with residuals.  

A December 1999 VA muscle examination report noted that, with respect to the injury to MG XIX, there was also mild atrophy of the abdominal muscles, and the Veteran was unable to complete a sit-up without the use of his arms, which was indicative of moderately severe impairment of the abdominal muscle group.  As to the injury to MG XX, the examiner recorded that there was marked atrophy in the left lower lumbar region near the site of the GSW; however, there was no weakness with lateral or rotary movement of the spine upon testing.  This examiner also noted peritoneal adhesions secondary to abdominal surgeries.  The examiner opined that the service-connected GSW residuals had "nothing to do" with the Veteran's current circulatory disorder to his legs, arteriosclerosis, or anemia.  

At a December 1999 VA gastrointestinal examination, the Veteran reported that he sustained a GSW to the stomach in 1944 and, since that time, he had undergone two abdominal surgeries, developed gas gangrene, lost a lot of his intestines, and had been having continuous problems with anemia, weakness, and diarrhea.  The Veteran's complaints also included gastroesophageal reflux disease, hiatal hernia with frequent heartburn, and occasional abdominal distress in the mid-abdominal area.  There was diffuse tenderness throughout the abdomen, worse in the right upper quadrant; no rebound tenderness, and slightly hyperactive bowel sounds.  X-rays of the abdomen showed no obstruction.  The examiner opined that there was no relationship between the Veteran's sprue or his symptoms of reflux and GERD and his in-service GSW; and that the evidence did not show short bowel syndrome.  In a February 2000 addendum to this December 1999 report, the VA examiner indicated that, although the Veteran had a history of peritoneal adhesions, he was presently asymptomatic from the standpoint of peritoneal adhesions.  His symptoms of chronic diarrhea were related to his nontropical sprue because an abdominal series showed no evidence of obstruction, which would be present if there were adhesions.  

In a November 2000 letter, the Veteran's VA physician opined that his sprue was related to his service-connected abdominal wound, stating that there was medical evidence that celiac sprue could be exacerbated by trauma, and the Veteran had sustained a GSW to the abdomen and experienced symptoms since his injury.  In a December 2000, the same VA physician reiterated her opinion, and further noted that nutritional deficiencies could cause or complicate bone development and contribute to osteoporosis because of the absorption problems associated with the injury and disease.  In June 2002, the same VA physician acknowledged that celiac disease was a genetic disorder, but stated that it was frequently triggered for the first time by trauma.  She reiterated her opinion in November 2004. 

At a December 2002 VA orthopedic examination, the Veteran ambulated slowly and stiffly, utilizing a cane.  There examiner recorded severe kyphoscoliosis with generalized tenderness to palpation.  Forward flexion was limited to 35 degrees; extension was to 5 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 5 degrees; and there was increased pain with all ranges of motion noted.  There was generalized tenderness to palpation of the upper and lower back, but no visible or palpable muscle spasms.  There was a faint, circular, 2-cm in length scar just to the left of midline in the low back, which was tender, with a slight dimpling of the skin at the area of the scar, but was nonulcerated and nonadherent.  The impression was severe kyphoscoliosis of the thoracic and lumbar spine with degenerative disease and osteoporosis.  The examiner opined that the Veteran's kyphosis resulted in significant impairment of the ability to bend, lift, or carry; significant limitation of spinal motion; adverse effects on extended periods of sitting, standing, or walking; and inability to sleep in a supine position.

A January 2003 VA scar examination noted that the Veteran's healed GSW scars of the abdominal and lumbar regions were slightly painful.  His abdominal scar was slightly irregular, 6.5 inches long and 0.5 inches wide at the widest area at the upper part of the scar.  The area was somewhat sensitive to touch and palpation and occasionally painful.  The exit wound on the back was 1.5 inches in diameter, slightly puckered, and tender to palpation.  The scar was slightly thickened in some places, but there was no evidence of breakdown.  There was slight underlying tissue loss, as the scar was slightly depressed in some areas.  The examiner stated that there was mild disfigurement from both the abdominal scar and the back scar.  The diagnosis was well-healed scars, with mild residual pain and increased sensitivities.

At a January 2003 VA gastrointestinal examination, the Veteran was had a soft abdomen, with no masses or organomegaly, and normal bowel sounds.  There was mild abdominal scar tenderness.  The diagnosis was history of sprue/celiac disease.  

A January 2003 VA neurological examination noted kyphosis of the thoracic spine and weakness of both lower extremities, with impaired neurological testing bilaterally.  The VA examiner opined that the Veteran had sustained a left lumbosacral plexus injury involving multiple nerves in the left lower extremity, with the majority of symptoms in the distribution of the femoral nerve.  She noted that the Veteran continued to have an absent ankle jerk and sensory loss, which should symptoms should be considered as a separate problem from the GSW; and opined that he had probably developed a bilateral distal, symmetrical neuropathy on a nutritional basis from his sprue, which had compounded the original difficulty.  

In a December 2003 opinion, a VA gastroenterologist, in consultation with another VA physician, opined that there was no relationship between his celiac disease and the in-service GSW.  They noted that the Veteran was diagnosed with the GI condition more than 40 years after service, and medical literature documenting a relationship between celiac disease and some forms of trauma such as surgery showed that such a relationship occurred in proximity to the onset.  

In November 2003, the Veteran applied for a TDIU (via VA 21-8940), stating that he had worked as a VA pharmacist since 1988, but had become too disabled to work due to his service-connected disabilities in August 1994.  The Veteran's human resources manager confirmed disability retirement in September 1994.  

In December 2004, the Veteran submitted pictures that showed his noticeable scarring of the mid- to upper-abdomen, as well as his humped upper back.

At a May 2005 VA neurological examination, the Veteran ambulated with a very stooped and crooked posture.  He could not rise to his toes, and he could only walk a few steps on his heels.  Muscle tone was normal, but the lower extremities had generalized atrophy, mild generalized weakness, and impaired reflex and sensory testing.  The examiner stated that he would not expect nerve damage to the right lower extremity as a direct consequence of the GSW; and opined that the Veteran's peripheral neuropathy affecting both lower extremities was likely a result of malabsorption, possibly from small bowel resection and exacerbated by sprue.  

The Veteran died in July 2005.  His certificate of death listed the immediate cause of his death as a myocardial infarction, with asthma as a contributing condition.  

Disability Criteria

While the Veteran's appeal was pending prior to his death, VA revised the criteria for evaluating muscle injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 4.72.  On June 3, 1997, VA promulgated final regulations, to be effective July 3, 1997, to more clearly address muscle injuries and disorders of the orthopedic system as separate disability categories.  In particular, 38 C.F.R. § 4.72 was removed, and the provisions from that regulation were incorporated into the provisions of 38 C.F.R. § 4.56.  See 62 Fed. Reg. 30237-240 (1997).  The provisions of sections 4.55 and 4.56 remained largely the same otherwise, but contained some changes as below.

The law "precludes an effective date earlier than the effective date of the liberalizing . . . regulation," but the Board should adjudicate whether a claimant would "receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation."  DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  Accordingly, the increased rating issues, for accrued purposes, will be considered under the old regulation for the entire period on appeal; as well as under the new regulation for the period beginning on the effective date of the new provisions.  The version that is most favorable to the appellant will be applied.  

Throughout the appeal period, the principles for combined ratings for muscle injuries have been set forth in 38 C.F.R. § 4.55.  Effective prior to July 3, 1997, this regulation described the combination of ratings of muscle injuries in the same anatomical segment, or of muscle injuries affecting the movements of a single joint, either alone or in combination or limitation of the arc of motion.  As pertinent to this case, it stated that muscle injuries in the same anatomical region would not be combined, but instead, the rating for the major group would be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity.  Two or more muscles affecting the motion of a single joint could be combined, but not in combination receive more than the rating for ankylosis of that joint at an intermediate angle, with an exception for shoulder injuries.  Muscle injury ratings would not be combined with peripheral nerve paralysis ratings for the same part, unless affecting entirely different functions.  38 C.F.R. § 4.55 (1996).

Effective since July 3, 1997, 38 C.F.R. § 4.55 provides that a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.  38 C.F.R. § 4.55(a) (2015).  

For VA rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in five anatomical regions: six muscle groups for the shoulder girdle and arm (DCs 5301 to 5306); three muscle groups for the forearm and hand (DCs 5307 to 5309); three muscle groups for the foot and leg (DCs 5310 to 5312); six muscle groups for the pelvic girdle and thigh (DCs 5313 to 5318); and five muscle groups for the torso and neck (DCs 5319 to 5323).  38 C.F.R. § 4.55(b) (2015). 

There will be no rating assigned for muscle groups that act upon an ankylosed joint, with exceptions involving the knee and shoulder.  38 C.F.R. § 4.55(c) (2015). 

The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, with an exception for shoulder injuries.  38 C.F.R. § 4.55(d) (2015).  For compensable injuries that are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level, and used as the combined evaluation for the affected muscle groups.  38 C.F.R. § 4.55(e) (2015).  For injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under section 4.25.  38 C.F.R. § 4.55(f) (2015).

Effective prior to July 3, 1997, 38 C.F.R. § 4.72 provided that, in rating disability from injuries of the musculoskeletal system, attention was to be given first to the deepest structures injured (bones, joints, and nerves).  A through-and-through injury, with muscle damage, was deemed to be at least a moderate injury for each group of muscles damaged.  A rating of severe grade was established for a history of compound comminuted fracture and definite muscle or tendon damage from a missile.  The regulation noted that there may be additional disability from malunion of bone, ankylosis, etc; and that the location of foreign bodies could establish the extent of penetration and consequent damage.  The regulation also recognized that there were locations, as in the wrist or over the tibia, where muscle damage might be minimal or damage to tendons might be repaired by sutures; in such cases, the requirements for a severe rating were not necessarily met.  38 C.F.R. § 4.72 (1996).  This provision was incorporated into section 4.56 in 1997, as set forth below.

Both prior to and since July 3, 1997, muscle injuries were classified in four general categories of severity: slight, moderate, moderately severe, and severe; with separate evaluations assigned based on criteria set forth in 38 C.F.R. § 4.56.  As the Veteran was assigned ratings of moderate or higher, the "slight" criteria are omitted.

Effective prior to July 3, 1997, moderate muscle disability was established by: Injury via through-and-through or deep penetrating wounds of relatively short track by a single bullet, small shell or shrapnel fragment; without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection.  History and complaints included hospitalization in service for treatment; and consistent complaints of one or more of the cardinal signs and symptoms of muscle wounds, particularly lowered threshold of fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by the injured muscles.  Objective findings included entrance and, if present, exit scars that were linear or relatively small and situated as to indicate a relatively short track of the missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests.  38 C.F.R. § 4.56(2) (1996).

Moderately severe disability of the muscle: Injury via through-and-through or deep penetrating wound by a small high-velocity missile or a large low-velocity missile, with debridement or prolonged infection with sloughing of soft parts, and intermuscular cicatrization (scarring).  History included hospitalization for a prolonged period of treatment of the wound in service; consistent complaints of cardinal symptoms of muscle wounds; and, if present, evidence of unemployability because of inability to keep up work requirements.  Objective findings included entrance and, if present exit scars that were relatively large and situated to indicate a track of the missile through important muscle groups.  Objective findings also included indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side.  Tests of strength and endurance of muscle groups compared with the sound side would show positive evidence of marked or moderately severe loss.  38 C.F.R. § 4.56(3) (1996).

Severe disability of the muscle: Injury via through-and-through or deep penetrating wound due to a high-velocity missile, or large or multiple low-velocity missiles, or explosive effect of high-velocity missile, or shattering bone fracture, with extensive debridement, prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization (scarring).  History was as with moderately severe grade; i.e., included hospitalization for a prolonged period of treatment of the wound in service; consistent complaints of cardinal symptoms of muscle wounds; and, if present, evidence of unemployability because of inability to keep up work requirements.  Objective findings included extensive ragged, depressed and adherent scars of the skin situated as to indicate wide damage to muscle groups in the track of the missile.  Palpation showed moderate or extensive loss of deep fascia or muscle substance.  Muscles were soft or flabby in the wound area, and muscles would not swell or harden normally in contraction.  Tests of strength, endurance, or coordinated movements compared with the sound side showed positive evidence of severe impairment of function.  If present, the following were also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating a spread of 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 filling over the bone without true skin covering, in an area where bone is normally protected by muscle; lack of reaction of degeneration but diminished muscle excitability compared to the sound side on electrodiagnostic tests; visible or measured atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; induration and atrophy of an entire muscle following simple piercing by a projectile if there was sufficient evidence of severe disability.  38 C.F.R. § 4.56(4) (1996).

Effective since July 3, 1997, 38 C.F.R. § 4.56 provides that an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal.  38 C.F.R. § 4.56(a) (2015).  A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.  38 C.F.R. § 4.56(b) (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) (2015).   

Under DCs 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe based on the following: 

Moderate disability of muscles: 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.  History includes in-service treatment for the wound; consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in section 4.56(c), particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objective findings include entrance and (if present) exit scars that are small or linear, indicating a 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)(2) (2015). 

Moderately severe disability of muscles: 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.  History includes hospitalization for a prolonged period for treatment of the wound; consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, inability to keep up with work requirements.  Objective findings include entrance and (if present) exit scars indicating the track of a 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 the sound side; tests of strength and endurance compared with the sound side demonstrative positive evidence of impairment.  38 C.F.R. § 4.56(d)(3) (2015). 

Severe disability of muscles: 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.  History includes hospitalization for a prolonged period for treatment of the wound; consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, inability to keep up with work requirements.  Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track.  Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the 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: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of a 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; induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4) (2015).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  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.  Thus, when evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain.  The codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

Pain itself does not constitute functional loss, and painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion.  Pain may result in functional loss, however, if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45.  Mitchell, 25 Vet. App. 32.

Individual Ratings

The Veteran's GSW residuals of the abdominal region (MG XIX), with muscle damage, was assigned a 30 percent rating for moderately severe impairment.  

The next higher (maximum) rating of 50 percent for the abdominal region (MG XIX) requires severe impairment.  Affected functions are support and compression of the abdominal wall and lower thorax, flexion and lateral motions of the spine, and synergists in strong downward movements of the arm.  Affected muscles are of the abdominal wall: the rectus abdominis, external oblique, internal oblique, transversalis, and quadratus lumborum.  38 C.F.R. § 4.73, DC 5319.  

The Veteran's GSW residuals of the lumbar region (MG XX), with muscle damage, was assigned a 20 percent rating for moderate impairment.  

The next higher schedular rating of 40 percent for the lumbar region (MG XX) requires moderately severe muscle disability; and a 60 percent (maximum) rating is available for severe muscle disability of the lumbar region.  Affected functions are postural support of the body, and extension and lateral movements of the spine.  Affected muscles are spinal muscles, namely, the sacrospinalis (erector spinae and its prolongations in the thoracic and cervical regions).  38 C.F.R. § 4.73, DC 5320.  

The appellant's attorney (who also represented the Veteran prior to his death) has argued at various times that the two service-connected muscle groups should each be assigned a rating for "severe" disability, and that a separate rating should also be assigned for thoracic kyphosis; or, alternatively, that a single 50 percent rating should be assigned for MGs XIX and XX in combination under 38 C.F.R. § 4.55.  See, e.g., arguments in June 2002, November 2004, and January 2011.

Notably, the Court stated in July 2010 that the Board's findings in August 2008 were not clearly erroneous as to the determination that "neither [Muscle Group] disability was sufficiently severe to warrant an increased disability rating based on the totality of the evidence."  See memorandum decision at p.5.  The Court vacated these determinations because the Board had not considered whether a 50 percent rating was warranted under 38 C.F.R. § 4.55, in effect prior to July 3, 1997.  

As discussed below, the Board finds that the Veteran's MG XIX residuals with muscle damage is appropriately rated as moderately severe disability, and the MG XX residuals with muscle damage is appropriately rated as moderate disability.  

Again, separate compensable ratings have been awarded for thoracic kyphosis (for accrued purposes), peritoneal adhesions, neuropathy of the left anterior crural (femoral) nerve, and scarring for the Veteran's tender abdominal (entry wound, or post-surgical wound) and lumbar region (exit wound) scars.  As the appellant did not appeal from the staged ratings or effective dates assigned for thoracic kyphosis disability in the 2011 AOJ decision, this prior contention need not be addressed.

Prior to his death, the Veteran repeatedly described his injuries, treatment, and symptoms during service.  See, e.g., May 1991 hearing transcript, February 1996 letter; multiple VA examination reports.  These descriptions were generally consistent with the contemporaneous evidence in his service treatment records.  

Abdominal Muscle Disability

As summarized above, the Veteran had a through-and-through injury from a single bullet to the abdominal region, with complications or infection of the abdominal wound during service including evisceration and pelvic abscess.  The entrance wound was likely relatively small, but the Veteran had a post-surgical incisional scar over the left rectus muscle of the abdomen from treatment in service.  This scar was large, measuring 9 inches, and extending from the mid-epigastric area to below the umbilicus.  He also had a small incisional scar over the right lower quadrant.  These scars were well-healed, with no hernia for several years after service, but with tenderness to the abdominal region.  See service treatment records in November 1944 and April 1945; VA examinations in June 1946 and June 1948.

As of late 1979, the Veteran had developed an incisional hernia in the upper third quadrant of the abdomen, described as a ventral hernia measuring was 6 cm by 6 cm in diameter.  See November 1979 private physician's letter; December 1979 VA examination report.  The August 1991 VA examiner continued to note an incisional hernia that did not warrant operative intervention.  The January 2003 VA examination noted mild disfigurement and mild pain of the abdominal scar. 

With regard to intermuscular scarring, a June 1983 private operative report noted "very little evidence of a previous inter-abdominal trauma."  Thereafter, VA examiners in January 1993 and December 1994 noted adhesions of the abdominal wall musculature with some limitation in movement of the abdominal muscles.  The Veteran also had peritoneal adhesions noted in 1993, which are separately rated.

Records shortly after service showed no abdominal wall weakness or muscle atrophy, in June 1946 and June 1948 VA examinations.  During the appeal period, a December 1999 VA muscle examination report noted that there was mild atrophy of the abdominal region muscles, and the Veteran was unable to complete a sit-up without the use of his arms, which was indicative of moderately severe impairment of the abdominal muscle group.  The 2005 VA examination noted normal muscle tone.  Thus, although there was lowered threshold of fatigue, fatigue pain, and loss of power at times for the abdominal muscles, there was not severe loss of strength.  

The above manifestations are contemplated under the currently assigned 30 percent rating for moderately severe disability of the abdominal region (MG XIX), applying both the current and former rating criteria.  38 C.F.R. §§ 4.56, 4.72 (prior), 4.73.

There were also no additional symptoms to indicate severe disability, such as scattered foreign bodies due to explosive effect of a high-velocity missile, or shattering bone or open comminuted fracture.  There were also no soft flabby muscles, or muscles that swelled and hardened abnormally in contraction, in the abdominal area.  Further, although the Veteran's abdominal scarring of the skin was several inches long, it was post-surgical; the scars were not extensive, ragged, depressed or situated as to indicate wide damage to muscle groups in the track of the missile.  There was also no indication of extensive loss of deep fascia or muscle substance, but only mild atrophy noted at times, and not for muscle groups not in the track of the missile.  Although there was a notation of atrophy in the lower extremities, this is separately service-connected to the extent that it has been attributed to the Veteran's GSW residuals.  There was also no diminished muscle excitability compared on electrodiagnostic tests for the abdominal region.  Id.

Separate, compensable ratings have been assigned for service-connected abdominal wound scarring, peritoneal adhesions, and kyphosis.  Although there is some evidence, such as in December 1999, that the Veteran's kyphosis was due to abdominal muscle retraction on the left side with rotation of the spine, the Veteran has been separately rated for this disability.  Thus, to include this as a factor for severe muscle damage disability would be impermissible pyramiding.

To the extent that the Veteran has had marked or moderately severe loss of abdominal muscle strength and endurance, these manifestations are also contemplated under the moderate disability level.  There is no indication of severe impairment of strength, endurance, or coordinated movements of the abdomen.  

The attorney argued in November 2004 that the Veteran's abdominal adhesions were analogous to adhesion of the scar to a bone, so as to warrant a severe rating.  This argument is unpersuasive, as there was no bone involved in these adhesions.  Instead, the Veteran's abdominal adhesions were more analogous to intermuscular scarring, as contemplated by the moderately severe disability rating.  Further, the Veteran has already been awarded a separate compensable rating for peritoneal adhesions associated with the GSW residuals to the abdominal region.  

To the extent that the Veteran had unemployability due to his abdominal muscle damage, this symptom is contemplated by the moderately severe disability rating. 

Additionally, range of motion was  not implicated by the service-connected GSW residuals of the abdominal region.  See 38 C.F.R. §§ 4.40, 4.45.  Although MG XIX contemplates effects on movement of the spine of with flexion and lateral motion, the Veteran has been awarded a separate staged rating for thoracic kyphosis, as associated with the GSW residuals to the abdominal region, to account for his limitation of motion of the thoracolumbar spine.  See 38 C.F.R. § 4.73, DC 5319.  

In particular, as summarized by the attorney in this case, to include in June 2002 arguments, the Veteran's kyphosis resulted in pain, a rear hump, limited forward bending and lateral motion, listing of the spine to the side, and limited ability to rest his head on a pillow in a supine position for sleeping.  A December 2002 VA examiner noted that kyphosis resulted in significant impairment of the ability to bend, lift, or carry; significant limitation of spinal motion; adverse effects on extended periods of sitting, standing, or walking; and an inability to sleep in a supine position.  The Veteran's kyphosis was described as "marked" in 1994 and 1999; and he had osteoarthritic changes and reduction in height of the mid-thoracic vertebra.  The 2011 rating decision considered these symptoms in assigning the separated, staged ratings for kyphosis.  Although there are some indications that the Veteran's limitation of motion of the thoracolumbar spine was due to osteoporosis, the 2002 examiner stated that limitation of motion and functional impairment of the spine were due to kyphosis.  Moreover, the evidence demonstrates that the manifestations of the osteoporosis cannot be separated from the kyphosis and, therefore, they are included in the service-connected rating.

Otherwise, the evidence did not demonstrate muscle stiffness, weakened movement, or incoordination due to abdominal muscle scarring to a severe level.  Thus, even when considering DeLuca factors, the overall disability picture does not more nearly approximate a severe disability, as required to warrant a 50 percent rating under DC 5319, under either the prior or revised rating criteria.  38 C.F.R. § 4.73. 

Although a December 1979 VA examiner stated that the Veteran's "abdominal problem was 'obviously severe,'" this categorization was in regard to the overall disability picture for the abdominal region.  This included the peritoneal adhesions and abdominal scarring for which service connection has been separately awarded.  Notably, the Veteran had thin abdominal muscles and a right ventral hernia; and the examiner diagnosed GSW to MG XIX, principally involving a ventral hernia of the right rectus muscle.  The hernia continued to be small in 1991 and 1992.  As noted in a prior Board decision, other than the symptoms discussed above, the other GI symptoms were attributed to his nonservice-connected celiac disease/sprue. 

Accordingly, an individual disability rating in excess of 30 percent for GSW residuals of the abdominal region (MG XIX), with muscle damage, for purposes of accrued benefits, is not warranted, under either the prior or revised rating criteria.

Lumbar Muscle Disability

Again, as summarized above, the Veteran had a through-and-through injury from a single bullet that exited through the lumbar region, with debridement of the exit wound and extended hospitalization.  He continued to have intermittent back pain or tenderness, muscle spasms, and associated left anterior crural nerve (femoral) damage with neuropathy.  Separate, compensable ratings were assigned for the lumbar region scar and left lower extremity neuropathy.  In a prior Board decision, the Veteran's neurological symptoms in the right lower extremity were determined to be unrelated to his GSW residuals, and service connection was denied. 

There were indications of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and/or uncertainty of movement due to effects on the Veteran's lumbar region muscles.  Historically, in November 1945 and June 1948, the Veteran reported frequent back pain, along with stiffness in his left leg; and pain in the middle of the back if he would stand or sit for too long.  The December 2002 VA examination noted continuing complaints over the years, and that the Veteran moved slowly and stiffly and used a cane.  These complaints did not rise to the level of moderately severe or marked loss of strength, as contemplated by moderately severe disability; or severe loss of strength, as contemplated by severe disability.  

Similarly, to the extent that there was moderate loss of deep fascia or muscle substance or impairment of muscle tonus of the lumbar region, or weakness or fatigue upon testing, these manifestations are contemplated by the moderate disability rating.  There was no indication, however, of loss of normal firm resistance of the lumbar region muscles; and no marked or moderately severe impairment of strength and endurance of the lumbar region muscle groups compared to the sound side, as contemplated by the moderately severe rating.  

Moreover, the Veteran's functional impairment due to weakness, impairment of strength or endurance, of the lumbar spine is contemplated under the separate rating for kyphosis; and assigning a higher rating on this factor would be pyramiding.

The attorney argued in November 2004 that the Veteran also had lumbar region atrophy, loss of deep fascia or muscle substance, as contemplated by a moderately severe rating; or soft flabby muscles in the wound area, visible or measured atrophy of lumbar region muscles, or atrophy of muscle groups not in the track of the missile, as contemplated by a severe rating.  In this regard, a 1945 service treatment record noted some defect upon palpation to the erectus spini muscles.  After service, however, a June 1946 VA examination reflected no atrophy of any muscle group, other than in the left leg related to an old boil scar.  In a December 1979 VA examination, there was no evidence of lumbar paraspinal musculature weakness.  Indeed, the diagnosis was MG XX wound of the lumbar region, "with no muscle group involvement."  More recently, a December 1999 VA muscles examination report stated that there was "marked atrophy" in the left lower lumbar region near the site of the Veteran's GSW.  This examiner also recorded, however, that there was no weakness with lateral or rotary movement of the spine.  Further, a December 1999 VA orthopedic examiner specified that there was no paraspinal tenderness, muscle tightness, or atrophy.  Thereafter, a May 2005 VA neurological examination recorded that testing showed normal muscle tone, but generalized atrophy, weakness, and impaired sensation in the lower extremities.  

In light of the multiple examinations after service, both before, during, and after December 1999, that recorded no atrophy and normal muscle tone, the Board finds that the 1945 record did not show atrophy, and the December 1999 muscle examination report is not an accurate reflection of the severity of the Veteran's lumbar region muscle damage at that time.  Thus, the report is rejected in that regard as inconsistent with the other probative evidence.  Indeed, if there were marked atrophy at that time, it would be reasonable to assume that there would have been weakness of lumbar movements; however, the 1999 muscle report stated that there was no weakness of lateral or rotary movements of the lumbar spine.  As such, the weight of the evidence shows no muscle atrophy or soft, flabby muscles.

There were also no other indications of severe disability, such as scattered foreign bodies due to explosive effect of a high-velocity missile, or shattering bone or open comminuted fracture.  There were also no muscles that swelled and hardened abnormally in contraction, in the lumbar region.  The Veteran's lumbar region scar was not extensive, ragged, depressed or situated as to indicate wide damage to muscle groups in the track of the missile.  Again, the weight of the evidence shows no atrophy in the lumbar region muscles; and although there was a notation of atrophy in the lower extremities, this is separately service-connected to the extent that it has been attributed to the Veteran's GSW residuals.  There was also no diminished muscle excitability upon electrodiagnostic tests for the lumbar region muscles, as opposed to in the lower extremities, which is separately rated.  There was no adaptive contraction of an opposing group of muscles for the lumbar region; as noted above, although there was abdominal contraction affecting the lumbar spine to result in kyphosis, this is separately rated as kyphosis.

With the exception of debridement, these findings were contemplated under the 20 percent rating for moderate disability of the lumbar region (MG XX).  The evidence did not demonstrate moderately severe or severe symptomatology of the lumbar region, so as to warrant a higher disability rating.  See 38 C.F.R. §§ 4.56, 4.73.

Although debridement of the lumbar wound is contemplated by the moderately severe level of muscle damage, there must also be intermuscular cicatrization (scarring), as shown by the word "and" in the rating criteria.  38 C.F.R. § 4.56.  There was no intermuscular scarring for the lumbar region muscles.  There was also no sloughing of soft parts from infection.  Further, the Veteran's GSW debridement was not extensive, as contemplated by the rating for severe muscle damage.  

To the extent that the Veteran had unemployability due to his lumbar GSW residuals, this was due primarily to his limitation of motion and limited function of the spine due to kyphosis, which is separately rated from the muscle damage.  There is no indication that the lumbar region muscle damage alone resulted in unemployability, as contemplated by the moderately severe rating or severe rating. 

An increased rating for the Veteran's muscle damage is not warranted based on functional loss due to pain, weakness, or other factors.  See 38 C.F.R. §§ 4.10, 4.40, 4.45.  As noted above, the Veteran's limitation of motion and functional impairment of the thoracolumbar spine due to pain and other factors, to include during repetition or after flare-ups, are contemplated under the separate rating for kyphosis, for accrued purposes.  Although the Veteran had significant manifestations due his GSW residuals affecting the abdominal and lumbar regions, separate compensable ratings have been awarded for abdominal region muscle damage, lumbar region muscle damage, peritoneal adhesions, kyphosis, left lower extremity neuropathy, and abdominal and lumbar region scars.  The disability rating that is currently on appeal contemplates only the muscle damage to the lumbar region (MG XX).  There was not moderately severe or severe muscle stiffness, weakened movement, or incoordination due to such muscle damage.  Thus, even when considering DeLuca factors, the individual disability picture does not rise to a higher level, under either the prior or revised rating criteria.  38 C.F.R. §§ 4.56, 4.73. 

Accordingly, an individual disability rating in excess of 20 percent for GSW residuals of the lumbar region (MG XX), with muscle damage, for purposes of accrued benefits, is not warranted, under either the prior or revised rating criteria.

Section 4.55 Analysis

With regard to section 4.55, as the appellant's attorney noted in January 2011, each vertebra in the spine is a "joint."  The attorney also argued that MGs XIX and XX act upon different anatomical segments, in that MG XIX acts upon the abdomen and pelvis, while MG XX acts upon the thoracic and cervical spine.  Nevertheless, as clarified by the current version of section 4.55(b), as well as section 4.73, DCs 5319 & 5320, the abdominal and lumbar regions are within the same anatomical region, i.e., the torso and neck.  Although the pre-1997 version did not define the different anatomical regions, there is no reason to believe that they would have been otherwise.  Thus, the attorney's arguments in this regard are rejected, and the GSW residuals to MG XIX and MG XX are located in the same anatomical region.  

Under these circumstances, the prior and current version of section 4.55 both provide, albeit with slightly different language, that muscle injuries in the "same anatomical region" should not be combined; instead, the rating for the major (or most severely injured) muscle group should be elevated (or increased) one level, e.g., from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity.  See 38 C.F.R. § 4.55 (1996) & 38 C.F.R. § 4.55(e) (2015).  The current version of section 4.55 reiterates that this higher rating should be used as the combined rating for the affected muscle groups; and that this rule applies to injuries in the same anatomical region that do not act upon the same joint.  Id.   This is generally consistent with the arguments by the appellant's attorney that the Veteran's injuries acted upon different joints in the spine; however, his injuries do not affect a joint in an extremity, with the exception of neurological impairment of the left lower extremity, which is rated separately.

Accordingly, under the prior and current versions of section 4.55, the Veteran's rating for MG XIX should be elevated from moderately severe to severe, or from 30 to 50 percent under DC 5319.  This single rating should take the place of the two assigned separate ratings for MG XIX and MG XX, which otherwise only combined for a 40 percent rating.  See 38 C.F.R. §§ 4.25, 4.55, 4.73 (1996 & 2015). 

The Veteran's separately assigned ratings of 30 and 20 percent for MGs XIX and XX, respectively, were in effect for more than 20 years; therefore, they are protected and may not be reduced in the absence of fraud.  See 38 C.F.R. § 3.951.  Further, when there is a protected rating under 38 C.F.R. § 3.951(b), the Board must consider whether changing the diagnostic code under which the disability is rated would effectively reduce the protected disability rating and assign a new, separate disability rating.  See Murray v. Shinseki, 24 Vet. App. 420, 423-24 (2011).  

In this case, the assignment of a single rating for the MG XIX and XX disabilities in combination, as provided in section 4.55 (1996 & 2015), does not result in a true change in the diagnostic code or a reduction of either rating.  Instead, the Veteran's disability rating is increased, from 40 percent for the two disabilities when they are rated separately and combined under § 4.25, to a single 50 percent rating for the two disabilities in combination under § 4.55.  The same diagnostic codes and rating criteria are used and, indeed, these codes are instrumental in the determination of which anatomical region is involved, so as to apply the provisions of the old and current versions of section 4.55, for the purpose of accrued benefits.  As such, the appellant will not be prejudice by the change, and his ratings remain protected.

The Board further observes that the separate rating assigned for neuropathy of the Veteran's left lower extremity crural (femoral) nerve, as associated with injury to MG XX, was based on the criteria for incomplete or complete paralysis of the nerve.  See 38 C.F.R. § 4.124a, DC 8526 (2015).  This disability affected a different part and different functions, e.g., sensory and motor function of the left lower extremity, as opposed to postural support and certain movements of the lumbar spine.  This was proper under both the former and current versions of section 4.55, which indicate that muscle injury ratings may only be combined with peripheral nerve paralysis ratings for the same part if they affect entirely different functions.  

General Considerations

All potentially applicable rating codes have been considered, whether or not they were raised by the appellant; and no rating is warranted other than those discussed herein for the appeal.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  

There is no argument or indication that extra-schedular consideration is warranted under 38 C.F.R. § 3.321(b)(1).  As detailed above, the Veteran's GSW residuals of the abdominal and lumbar regions have resulted in intermittent or varying degrees of pain, tenderness, small incisional ventral hernia, abdominal and peritoneal adhesions, atrophy and weakness of the abdominal muscles, large tender scar of the abdominal region, lumbar muscle spasms and weakness, small tender scar of the lumbar region after debridement, left lower extremity neuropathy, and kyphosis with limited spinal motion and hump back.  In addition to his muscle group ratings, the Veteran has been assigned separate ratings for associated disabilities of peritoneal adhesions, kyphosis, left lower extremity neuropathy, lumbar and abdominal region scars.  Thus, all of his service-connected symptomatology has been fully contemplated by the assigned ratings under the schedular rating criteria.  

The rating schedule is adequate, and it is not an exceptional or unusual disability picture.  Moreover, neither the GSW residuals with muscle damage, nor the separate ratings for related disabilities, resulted in marked interference with the Veteran's prior employment.  Although the Veteran indicated in a May 1995 statement that he was a "broken down old man" and was forced into medical retirement in 1994, he listed multiple nonservice-connected conditions in addition to service-connected disabilities; this does show marked interference.  Further, the GSW residuals did not require frequent hospitalization during the appeal period; rather, the last time the Veteran was hospitalized due to his service-connected disabilities was in the 1940s.  As such, referral for consideration of an extra-schedular rating is not necessary.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  

Similarly, applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no symptoms of the disabilities on appeal 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 for a disability that can be attributed only to the combined effect of multiple conditions.  Cf. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  

In conclusion, the preponderance of the evidence is against a finding of higher than moderately severe disability for GSW residuals of the abdominal region (MG XIX); or higher than moderate disability for GSW residuals of the lumbar region (MG XX).  The benefit-of-the-doubt does not apply in this respect.  38 C.F.R. § 4.3.  

Under 38 C.F.R. § 4.55 (1996 & 2015), however, a single 50 percent rating should be applied for these disabilities in combination, for purposes of accrued benefits.  Thus, the appeal is granted in this respect, but otherwise the claims must be denied.

Earlier Effective Date for TDIU

The effective date for an award of an increased rating, including a TDIU, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  The effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim was received within one year from such date; otherwise, the award will be made effective as of the date of receipt of the claim.  38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o).

A TDIU will be granted where the schedular rating is less than 100 percent if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Generally, to be eligible for a TDIU, a schedular percentage threshold must be met; however, if these threshold criteria are not met, but the evidence reflects that the veteran is unemployable by reason of service-connected disabilities, TDIU may be granted on an extraschedular basis, after referral for such consideration.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  

In this case, the award of a 20 percent rating for thoracic kyphosis, effective January 26, 1993, resulted in a 60 percent combined rating for the Veteran's service-connected disabilities, all of which were associated with his GSW residuals and incurred in combat.  Thus, they constitute a single disability for TDIU purposes, and the schedular percentage threshold for a TDIU was met.  38 C.F.R. §§ 4.16(a), 4.25.  

In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust v. West, 13 Vet. App. 342 (2000).  Entitlement to a TDIU does not require 100 percent unemployability.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant.  38 U.S.C.A. § 5107, 38 C.F.R. § 4.3.

Prior to the Veteran's death, any communication or action, indicating intent to apply for one or more VA benefits, which identified the benefit sought, could be considered an informal claim.  38 C.F.R. § 3.155(a) (1990 & 2004); cf. 38 C.F.R. § 3.155 (2015) (as amended, to specify procedures for filing a claim and add the concept of an intention to file a claim).  Although an appellant's submissions must be interpreted broadly, the Board is not required to conjure up issues that were not raised.  Brannon v. West, 12 Vet. App. 32 (1998).  An appellant must have asserted a claim expressly or impliedly.  Isenbart v. Brown, 7 Vet. App. 537, 540-41 (1995).  

If the schedular rating threshold for a TDIU is met under § 4.16(a) and there is evidence of current unemployability due to service-connected conditions in the file, then evaluation of a claim for a rating increase should include consideration of a reasonably raised claim for a TDIU.  Norris v. West, 12 Vet. App. 413, 421 (1999).  A claim for a TDIU need not be pled with specificity; it will be implicitly raised when a veteran presents evidence of unemployability and seeks to obtain a higher rating.  Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  Further, after the Board's 2008 denial of an earlier effective date for a TDIU, for accrued purposes, the Court held that a claim for a TDIU is not a separate claim for benefits but, instead, is part and parcel of the appeal of underlying ratings where there is evidence of unemployability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

The appellant and her attorney seek an effective date in August 1994 for the TDIU award, for accrued purposes.  The attorney noted in January 2016 that the precise date was not critical because the award would begin effective September 1, 1994.  They assert that the Veteran stopped working in August 1994, and he was precluded from substantially gainful employment due to service-connected disabilities.

VA received the Veteran's claim for increased ratings, including for the service-connected GSW residuals still on appeal herein, peritoneal adhesions, and other claimed conditions, in 1990.  He was still employed at that time, and he testified during a May 1991 hearing that he remained employed despite various symptoms.  

In his formal claim for a TDIU (VA Form 21-8940), submitted in November 2003, the Veteran reported that he last worked full-time and became too disabled to work as a pharmacist due to service-connected disabilities on August 16, 1994.  A human resources representative from the Veteran's former employer stated, however, that his disability retirement was effective as of September 15, 1994.  Thus, under Rice, despite the date of the formal claim, an informal claim for a TDIU is deemed pending since 1994, due to the Veteran's reports of being unemployed since 1994 and the ongoing appeals of the underlying assigned disability ratings.  Id.

The RO initially granted a TDIU effective as of November 5, 2003, by resolving all reasonable doubt in the Veteran's favor because he met the schedular criteria for a TDIU at that point, prior to the award of a separate rating for kyphosis.  The RO did not discuss whether it was factually ascertainable that the Veteran was unable to secure or maintain gainful employment solely due to service-connected disabilities as of November 5, 2003.  See January 2004 rating decision.  Upon remand, the RO assigned an earlier effective date for the TDIU as of a December 31, 2002, VA examination; which was also the date of an award of a higher rating for kyphosis.  

In a May 2001 letter, the Veteran stated that he had a sixth-grade education, after which time he worked on various farms full-time until his entry into service.  As noted above, he worked as a pharmacist from 1988 until retiring in late 1994.

As early as October 1979, a private physician stated that the Veteran was permanently and totally disabled due to several disabilities, including poor bowel and bladder control, COPD, progressive numbness in the lower extremities, dependent edema requiring diuretic therapy, and extensive sensory nerve loss in both legs.  Nevertheless, the Veteran worked thereafter, including from 1988 to 1994.  The Veteran was also diagnosed with sprue/celiac disease in 1983, with many GI symptoms and anemia.  Records from 1991 through February 1994 also showed additional conditions including advanced arteriosclerosis, severe kidney failure, enlarged liver, pitting edema in the legs, and possible circulatory disorder in the lower extremities.  Most of these conditions are not service-connected.  

During the May 1991 hearing, the Veteran testified that he believed that the damage to his muscle groups was really minor compared to what he believed had developed from the gunshot wound.  He described bowel symptoms, non-tropical sprue, a hump back, infrequent stomach cramping, weight loss, and generalized weakness.  The Veteran indicated that, despite weight loss and weakness, he continued to work.  

Similarly, in a May 1993 letter, the Veteran reported weakness from a lack of nutrition and an inability to stand or walk very far; he stated that his bowel and gastrointestinal problems were worse than his scarring and muscle damage.  

After his retirement, in a letter received in May 1995, the Veteran indicated that it was difficult dining out due to dietary restrictions for his sprue.  He also complained of asthma, emphysema, a hump back, back pain, a collapsed vertebra, weakness, sprue, severe diarrhea, and being unable to hear.  The Veteran stated that he was a "broken down old man" and that he "had to take a forced medical retirement" as a result of his ailments, which he believed were related to his GSW residuals.   

In a February 1996 letter, the Veteran asserted that he had to take medical retirement due to problems standing and sitting for extended periods due to his back disability.  He reported having a backache for 50 years (or since service), as well as weakness and abdominal scarring, and that he had developed a humped back due to having pain from his abdominal scar tissue when he would try to stand up straight.  

Service connection was not and is not in effect for the Veteran's conditions of asthma, emphysema/COPD, sprue, severe diarrhea, or hearing difficulties.  His rating for kyphosis, for accrued purposes, includes his back pain and collapsed vertebrae; and his weakness of the abdominal and lumbar regions and the left lower extremity are also service-connected.  Weakness of the right lower extremity or generalized weakness, however, are not service-connected.  Functional impairment from the nonservice-connected conditions may not support an earlier TDIU award.

Despite the Veteran's statements in his February 1996 letter, the other evidence of record shows that he had a similar level of symptoms from his service-connected GSW residuals of the abdominal and lumbar regions, and associated service-connected conditions, through his retirement in 1994 and until December 2002.  

Shortly before his retirement, at a February 1994 VA orthopedic examination, the Veteran ambulated with a satisfactory gait pattern, even though he had marked kyphosis with some degree of scoliosis noted when standing erect, but no particular spasm or tenderness.  Forward flexion of the spine was limited to 80 degrees, and extension was to 20 degrees; he performed a fair heel-and-toe walk and was able to slowly squat and rise again.  There were decreased reflexes in the left knee.  

Approximately five years after his retirement, during a December 1999 VA orthopedic examination, the Veteran complained of pain mostly between the shoulder blades, and he denied low back pain or radiation of pain.  The Veteran still ambulated normally and was able to squat and rise without significant difficulty, despite marked thoracic kyphosis.  Forward flexion of the spine was to 60 degrees; extension was to 5 degrees; lateral flexion was to 10 degrees, bilaterally; and rotation was to 30 degrees.  Deep tendon reflexes were absent in both knees and ankles, and sensory examination revealed dullness on the L4-5 distribution of the left leg.  The examiner noted that thoracic kyphosis made it difficult for the Veteran to rest his head on a pillow in the supine position; but no other limitations were noted at that time.  Instead, the examiner stated that the Veteran was independent in his activities of daily living and could ambulate without the assistance of a device.  

The December 1999 VA muscle examiner stated that the Veteran was unable to complete a sit-up without the use of his arms, due to GSW damage to the abdominal muscle group.  As explained above, although this examiner recorded marked atrophy in the left lower lumbar region near the site of the GSW, this notation has been rejected as inconsistent with the other evidence showing no atrophy of the lumbar region muscles.  Further, the December 1999 muscle examination noted that no weakness with lateral or rotary movement of the spine was found upon testing.  

During the December 1999 VA examination for GI conditions, the Veteran reported continuous problems with anemia, weakness, and diarrhea; gastroesophageal reflux disease, hiatal hernia with frequent heartburn, and occasional distress in the mid-abdominal area.  He was asymptomatic from the standpoint of peritoneal adhesions.  

In contrast to the records from the 1990s through 1999, at the December 31, 2002, VA examination, the Veteran ambulated slowly and stiffly, utilizing a cane.  The examiner recorded severe kyphoscoliosis with generalized tenderness to palpation of the upper and lower back.  Range of motion was significantly more limited than previously, with forward flexion to 35 degrees; extension to 5 degrees; right lateral flexion to 20 degrees; left lateral flexion to 5 degrees; and increased pain with all ranges of motion.  This examiner summarized that the Veteran's kyphosis resulted in significant impairment of the ability to bend, lift, or carry; significant limitation of spinal motion; adverse effects on extended periods of sitting, standing, or walking; in addition to the previously noted inability to sleep in a supine position.  

In sum, the December 31, 2002, VA examination reflected more severe findings and functional impairment due to the Veteran's service-connected back disability, including GSW residuals, kyphosis, and left lower extremity neuropathy.  During the other VA examinations shortly before and subsequent to the Veteran's 1994 retirement, however, the Veteran continued to be able to ambulate without assistance, and he was independent in his daily activities.  Thus, although the Veteran was competent to report his observable symptoms and their perceived appearance on his employability, his assertions that was unable to work due to service-connected disabilities, and particularly his back condition as stated in 1996, are inconsistent with the other evidence.  Instead, his major complaints were centered around nonservice-connected GI symptoms, including chronic diarrhea, and generalized weakness noted as due to sprue/celiac disease, anemia, or other his other advanced conditions such as kidney failure and heart disease.  The Veteran's assertions as to the reasons for his employability are rejected as not credible.

Further, the evidence does not demonstrate that the Veteran became unable to secure or maintain gainful employment consistent with his prior education and work history due to service-connected disabilities within the one year prior to December 31, 2002, without considering the effects of his multiple nonservice-connected conditions or the Veteran's age.  See 38 C.F.R. § 3.400(o).

In conclusion, the preponderance of the evidence is against an effective date for the award of a TDIU prior to December 31, 2002, for accrued purposes.  Hence, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied.  38 U.S.C.A. §§ 5107(b), 5110(b)(2); 38 C.F.R. §§ 3.400(o), 3.1000, 4.3, 4.16.  

III.  DIC under 38 U.S.C.A. § 1310

To warrant DIC based on service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death.  A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death; there must be not merely a casual connection, but a causal connection to death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.

Service connection for the cause of death is generally to be determined on the same basis as service connection for compensation under Chapter 11 of 38 U.S.C.A. (38 U.S.C.A. § 1100 et. seq.).  38 U.S.C.A. § 1310(a).  A service-connected disability is one that resulted from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Where a disease was first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  Direct service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the in-service disease or injury and the present disability.  38 C.F.R. § 3.304; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

Where a veteran served 90 days or more during a period of war, certain chronic diseases, including arteriosclerosis, cardiovascular-renal disease, and hypertension, will be presumed to have been incurred in service, if they became manifest to a degree of 10 percent within one year from the date of termination of such service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Further, a nexus to service will be presumed where there is continuity of symptomatology since service for a listed chronic disability.  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

The Veteran served during World War II from 1943 to 1945, and he died in July 2005.  The appellant submitted a timely application for DIC benefits in 2005, within one year thereafter, seeking service connection for the cause of the Veteran's death.  

The certificate of death listed the Veteran's immediate cause of death as myocardial infarction, with a significant condition contributing to death of asthma.  

Effective as of the time of the Veteran's death, service connection was in effect for GSW residuals of the abdominal region (MG XIX) with muscle damage; GSW residuals of the lumbar region (Muscle Group XX) with muscle damage; and related thoracic kyphosis (which was later separated out); peritoneal adhesions; left anterior crural (femoral) neuropathy; and scars in the abdominal and lumbar regions.  

There has been no suggestion, documentation, or argument of treatment, incurrence, or aggravation of a heart condition or asthma during the Veteran's period of service; or that he had manifestations of cardiovascular-renal disease or arteriosclerosis, to include a myocardial infarction, within one year of his discharge from service.  Instead, these conditions developed many years after the Veteran's discharge.

Further, there is no medical opinion of record to suggest that the Veteran's myocardial infarction that resulted in his death 50 years after discharge, or the contributing condition of asthma, was incurred or aggravated by service.  

There is also no suggestion that the service-connected disabilities resulted in debilitating effects and general impairment of the Veteran's health to an extent that they rendered him materially less capable of resisting the effects of the myocardial infarction, with contributing condition of asthma, that primarily caused his death.  In this regard, none of his service-connected disabilities at the time of death involved active processes affecting vital organs, and they were not assigned a schedular 100 percent rating, such that they might be generally considered to have such debilitating effects or general impairment of health.  38 C.F.R. § 3.312(c)(3).  

The appellant and her attorney are not competent to offer an opinion as to whether the Veteran's cardiac condition or asthma, as listed on the death certificate, were related to service, or to service-connected disability, to include his GSW residuals.  Rather, these questions require specialized knowledge, training, or experience due to the complex nature of the Veteran's medical history and the involved bodily systems.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  As such, any lay testimony or arguments in this regard are not probative or persuasive.  

Moreover, the appellant's attorney did not make specific arguments to the Court in July 2010, or since that time in January 2011 and January 2016 arguments, regarding service connection for the cause of the Veteran's death under § 1310.  Instead, the attorney argued that DIC benefits under § 1318 were warranted; this issue is being remanded herein.  Indeed, in the November 2005 notice of disagreement and September 2006 substantive appeal regarding the October 2005 denial of DIC, which was for service connection for the cause of the Veteran's death, the appellant's attorney stated that DIC was being appealed because the claims for accrued benefits could result in a 100 percent rating effective for 10 or more years prior to the Veteran's death, and DIC would be warranted under § 1318.  

In sum, the preponderance of the evidence is against service connection for the cause of the Veteran's death.  Thus, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.312.


ORDER

Entitlement to an individual disability rating in excess of 30 percent for GSW residuals of the abdominal region (Muscle Group XIX) with muscle damage, for purposes of accrued benefits, is denied.

Entitlement to an individual disability rating in excess of 20 percent for GSW of the lumbar region (Muscle Group XX) with muscle damage, for purposes of accrued benefits, is denied.

Entitlement to a rating in combination of 50 percent, pursuant to 38 C.F.R. § 4.55, for GSW residuals of Muscle Groups XIX and XX, to replace the separate 20 and 30 percent ratings for muscle damage of the abdomen and lumbar region; is granted.

Entitlement to an effective date prior to December 31, 2002, for the award of TDIU, for purposes of accrued benefits, is denied.

Entitlement to DIC benefits under 38 U.S.C.A. § 1310, based on service connection for the cause of the Veteran's death, is denied.  


REMAND

As explained above in the Introduction section, the appellant (through her attorney) submitted a timely formal notice of disagreement from the denial of DIC benefits under 38 U.S.C.A. § 1318, of which she received notice in July 2011.  The Board has no discretion, and a remand is required for the AOJ to provide a statement of the case (SOC) for this issue.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

Provide a statement of the case for the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318.  This issue should not be returned to the Board unless a timely substantive appeal is received to perfect the appeal.

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.  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).



______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs