Citation Nr: 1800370 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-20 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to the restoration of a 10 percent evaluation for shell fragment wound (SFW) of right side of the neck with incomplete paralysis of the facial nerve, slight muscle weakness and scars under Diagnostic Code 8207. 2. Entitlement to an evaluation in excess of 10 percent for muscle weakness, muscle group XXII, SFW under Diagnostic Code 5322. REPRESENTATION Veteran represented by: Kenneth Carpenter, Attorney ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The case was initially brought before the Board in June 2015, at which time the Board denied a higher than 30 percent evaluation for disfiguring scar of the anterior neck, SFW; denied a higher than 20 percent evaluation for SFW, muscle group VII, left forearm with scars and hernia on flexor surface; denied a higher than 10 percent evaluation for SFW, muscle group XI, right leg with scars and retained foreign bodies; denied a higher than 10 percent evaluation for SFW, muscle weakness muscle group XXII; denied a higher than 10 percent evaluation for right-side weakness of the lower lip; remanded a higher than 30 percent for posttraumatic stress disorder (PTSD); and remanded a total disability evaluation for individual unemployability due to service-connected PTSD. The Veteran appealed the portion of the June 2015 Board decision to the U.S. Court of Appeals for Veterans Claims (Court) that denied an evaluation in excess of 30 percent for disfiguring scar of the anterior neck, SFW; an evaluation in excess of 20 percent for SFW, muscle group VII, left forearm with scars and hernia on flexor surface; and an evaluation in excess of 10 percent for SFW, muscle weakness muscle group XXII. In a February 2017 memorandum decision and June 2017 Corrective Order, the Court set aside the portion of the June 2015 Board decision denying a higher than 10 percent evaluation for SFW, muscle weakness muscle group XXII and remanded the matter for additional development consistent with the decision, if necessary, adjudication of six reasonably raised claims, and readjudication consistent with the decision. The Court affirmed the portion of the decision that denied an evaluation in excess of 30 percent for disfiguring scar of the anterior neck, SFW; and an evaluation in excess of 20 percent for SFW, muscle group VII, left forearm with scars and hernia on flexor surface. The case has been returned to the Board. This case has an extensive and complicated procedural history, which will be detailed below. However, for purposes of characterizing the issues on appeal, the Board notes that the Court's February 2017 memorandum decision concluded that it had the discretion to address the question of entitlement to a restoration of a 10 percent evaluation for a right neck disability under Diagnostic Code 8207, because it had been reasonably raised by the record. The issues of service connection for muscle group II involving the left shoulder girdle; service connection for muscle group III involving the left shoulder girdle; service connection for muscle group V involving the bilateral elbow disability; service connection for muscle group XIII involving the right knee disability; service connection for muscle group XIII involving the medial thigh and right hip; and service connection for muscle group XVI involving the pelvic girdle and right hip have been raised by the record in at a May 2013 VA examination, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's award of service connection for a right neck disability was characterized initially as SFW of the right side of neck with incomplete paralysis of facial nerve, slight muscle weakness and scars, and assigned a 10 percent evaluation under Diagnostic Code 8207, effective January 1, 1972; there is no indication in the record that this rating was based on fraud. 2. At the time of the March 2002 rating decision which recharacterized the Veteran's right side of the neck with incomplete paralysis of the facial nerve, slight muscle weakness and scars (under Diagnostic Code 8207) to muscle weakness, muscle group XXII, SFW (under Diagnostic Code 5322), the 10 percent evaluation had been in effect for more than 20 years and was protected. 3. The reassignment of the Veteran's service-connected right neck disability from Diagnostic Code 8207 to Diagnostic Code 5322 was based on an identification that symptomatology under Diagnostic Code 8207 did not exist at the time of initial disability evaluation and was based on symptomatology present at the time of the initial disability evaluation; the change in diagnostic code did not result in a reduction in the disability evaluation; and the Veteran's protected rating for his 10 percent evaluation remains in effect. 4. Throughout the appeal period, the Veteran's muscle weakness, muscle group XXII, SFW has been manifested by symptoms that are most appropriately characterized as moderate. CONCLUSIONS OF LAW 1. The criteria for the restoration of a 10 percent evaluation under Diagnostic Code 8207 for SFW of the right side of neck with incomplete paralysis of facial nerve, slight muscle weakness and scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.951(b), 4.124a, Diagnostic Code 8207 (2017). 2. The criteria for an evaluation in excess of 10 percent for muscle weakness, muscle group XXII, SFW, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.55, 4.56, 4.73, Diagnostic Code 5322 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his/her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Procedural and Factual Background This case has an extensive and complicated procedural history. Originally, in a January 1971 rating decision, the Veteran was granted service connection for residuals of a SFW to the neck (among other injuries) and assigned an initial prestabilization evaluation of 50 percent from December 19, 1970. In August 1971, the Veteran underwent a VA examination. With regard to his neck, the Veteran complained of cramps in his neck with movement of the neck. Upon objective evaluation, a vertical four-inch scar located on the right side of the neck was noted. Moderate limitation of rotation to the left and flexion to the left because of tightness of the scar was found. There was moderate disfiguration of the neck due to the scar. There was slight weakness of the muscles of the right side of the face manifested by lagging of the right ankle of the mouth. No sensory abnormalities were noted. All of the deep reflexes were normal. The examiner diagnosed the Veteran with residuals of multiple shell fragment wounds manifested by multiple scarring particularly the right side of the neck with moderate disfigurement and minimal loss of function and minimal paresis of the right facial nerve with minimal disfigurement. Then, in a September 1971 rating decision, the Veteran's residual disabilities were separately evaluated. His SFW, right side of neck with incomplete paralysis of facial nerve, slight muscle weakness and scars was assigned a 10 percent evaluation under Diagnostic Code 8207, effective January 1, 1972. That 10 percent evaluation under Diagnostic Code 8207 remained in effect until 2002. In February 2002, the Veteran underwent a VA examination. The Veteran complained of some cosmetic defects due to the visible scar on the anterior neck, occasional trouble shaving around its irregular edges and occasional tightness of the subcutaneous musculature that responded well to ranging of the neck. Examination of the face showed sensory intact. There was mild weakness of the angular deflector of the mouth on the right side. The examiner diagnosed the Veteran with mild facial muscle weakness most likely secondary to the shrapnel wound of the right neck. In a March 2002 rating decision, the RO, in response to the Veteran's claim for a separate compensable evaluation for scars of the neck, addressed all of the applicable diagnostic codes for the Veteran's service-connected SFW of right side of the neck with incomplete paralysis of the facial nerve, slight muscle weakness and scars. In its analysis, the RO determined that the Veteran's neck and facial disability that had been rated under Diagnostic Code 8207, for facial paralysis might have been more appropriately rated at 10 percent under Diagnostic Code 5322, for muscle weakness affecting the face and neck. The RO found that at the time of September 1971 rating decision, an August 1971 VA examination did not find any neurological or sensory abnormalities. Based on current objective findings showing intact sensory examination results and mild weakness of the angular deflector of the mouth of the right side, the RO decided to recharacterize the Veteran's right neck disability as muscle weakness, muscle group XXII, SFW, reassign the Veteran's 10 percent evaluation under Diagnostic Code 5322, and made it effective as of January 1, 1972. The Veteran's 10 percent evaluation for SFW, right side of neck with incomplete paralysis of facial nerve, slight muscle weakness and scars was removed. This appeal arises from the Veteran's May 2009 higher evaluation claim for his service-connected disabilities, which included a claim for a higher than 10 percent evaluation for muscle weakness, muscle group XXII, SFW. The August 2009 rating decision denied the Veteran's higher evaluation claim for muscle weakness, muscle group XXII, SFW, and the Veteran appealed that decision. After perfecting his appeal, the Board issued a June 2015 decision denying the higher evaluation claim for muscle weakness, muscle group XXII, SFW. As discussed above, that decision was then appealed to the Court. When the Veteran filed his appeal to the Court, the Veteran asserted that when the Board discussed whether the Veteran was entitled to a higher evaluation for muscle weakness, muscle group XXII, SFW, it failed to restore the Veteran's 10 percent protected evaluation for a right neck disability under Diagnostic Code 8207, after the 10 percent evaluation had been reassigned under Diagnostic Code 5322 in a March 2002 rating decision. The Veteran contends that he is entitled both to the restoration of his 10 percent evaluation for a right neck disability under Diagnostic Code 8207 and to his evaluation for muscle weakness, muscle group XXII, SFW under Diagnostic Code 5322. As discussed in the introduction above, the Court found that it had the discretion to address the restoration issue as they already had jurisdiction over the higher evaluation claim, and the restoration issue had been reasonably raised by the record. In its February 2017 memorandum decision, the Court, in setting aside the Board's denial for a higher than 10 percent evaluation for muscle weakness, muscle group XXII, SFW, noted that all of the parties agreed that the Veteran's 10 percent evaluation for a right neck disability was a protected rating. On remand, the Court directed the Board to address whether restoration of that evaluation under Diagnostic Code 8207 was warranted. Furthermore, the Court also instructed the Board to address, if restoration was warranted, whether the 10 percent evaluation for muscle weakness, muscle group XXII, SFW under Diagnostic Code 5322 must be vacated to avoid pyramiding. Although the Veteran's specific claim for a higher than 10 percent evaluation for muscle weakness, muscle group XXII was not specifically argued by the Veteran in his briefs to the Court, and thus, not addressed in the memorandum decision, the Board finds that the Court did intend that the Board address the higher evaluation claim on remand; it was the issue appealed to the Court, it gave the Court its jurisdiction to consider the restoration issue, and its denial by the June 2015 Board decision was explicitly set aside and remanded. Accordingly, the issues on appeal are as reflected on the title page. Protected Rating The Court has instructed the Board to address the issue of whether the change in Diagnostic Code from 8207 to 5322 for the Veteran's service-connected right neck disability constitutes severance of a protected rating that violates 38 C.F.R. § 3.951. Section 3.951(b) provides that a disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The Veteran cited Murray v. Shinseki, 24 Vet. App. 240 (2011), as support for the proposition that the RO, improperly and effectively, reduced his protected rating for his right neck disability, when after it having been in effect for more than 20 years, removed his 10 percent evaluation under Diagnostic Code 8207 and assigned a 10 percent evaluation under Diagnostic 5322. Then, while the Board was addressing his higher evaluation claim, the Veteran asserts that the Board, in its June 2015 decision, failed to restore his protected 10 percent rating under Diagnostic Code 8207. However, the Board finds that under the specific circumstances of this case, the Veteran is not entitled to a restoration of his 10 percent evaluation under Diagnostic Code 8207. In Murray, the Court held that the change of diagnostic codes under which Veteran's disability was rated was error where change effectively reduced to zero disability rating which had been in effect for more than 20 years, and thus protected by regulation. 38 C.F.R. § 3.951(b). The Board finds that the Murray case is distinguishable from the current appeal. In Murray, the Court noted that at the time of his initial disability evaluation under Diagnostic Code 5257, the Veteran's left knee disability had only manifested symptoms of laxity. When his diagnostic code was changed, more than 20 years later, to Diagnostic Code 5260 based on current symptoms of arthritis and limitation of motion, and no evidence of instability or subluxation, the Court found that the change in diagnostic code was impermissible. The Court held that a VA medical examination showing that the symptoms upon which a disability rating was based are no longer present cannot act to reduce that disability rating if it has been in effect for more than 20 years, and thus protected by regulation. 38 C.F.R. § 3.951(b). In the current appeal, the RO determined that the Veteran's right neck disability was more appropriately rated under Diagnostic Code 5322 instead of Diagnostic Code 8207, because the August 1971 VA examination did not find any neurological or sensory abnormalities. Applying the Court's reasoning in Murray, the Board finds that the RO did not change the diagnostic code based on symptoms that were no longer present; rather, the diagnostic code was changed, because those neurological symptoms never existed. Furthermore, that August 1971 VA examination did identify symptoms of muscle weakness, so current symptoms that resulted in the diagnostic code appeared to also be present at the time of the initial disability evaluation. Days after the Murray decision, the Federal Circuit addressed a similar issue in Read v. Shinseki, 651 F. 3d. 1296 (Fed. Cir. 2011), which considered whether a change in Diagnostic Code to represent an injury from Muscle Group XIII to Muscle Group XV was an impermissible severance of service connection to his disability to Muscle Group XIII, which was protected under 38 U.S.C. § 1159 (2012). Section 1159 holds that service connection for any disability granted under such title which has been in force for ten or more years shall not be severed on or after January 1, 1962 except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. Id. In Read, the Veteran had been service-connected for residuals of a gunshot wound and a compensable rating had been assigned regarding a particular muscle group. Over 10 years after the initial assignment of the rating, a VA examiner determined that, in fact, a different muscle group had been affected by the gunshot wound and not the muscle group to which the initial diagnostic code applied. Notably, when the disability was initially granted service connection, no diagnosis of a particular muscle group had been identified. Following the VA examiner's report, the diagnostic code was changed to reflect the affected muscle group. The Veteran appealed and the Board denied the appeal finding that the diagnostic codes contained the same criteria and that because the disability still enjoyed the same rating, there had been no harm in changing the Diagnostic Code. The Court affirmed the Board and the Veteran appealed to the Federal Circuit. The Federal Circuit identified the issue on appeal as whether the service connection for a disability protected under 38 U.S.C. § 1159 is severed when VA assigns to an injury a different Diagnostic Code than originally noted. In reaching its conclusion that the protected disability is not severed, the Federal Circuit considered the rationale behind 38 U.S.C. § 1159, as well as other relevant statutory definitions, and determined that 38 U.S.C. § 1159 only protects service connection of the disability, not the specific Diagnostic Code. Upon review of the definition of service connection under 38 U.S.C. § 101(16), the Federal Circuit determined that "to sever service connection is to conclude that a particular disability previously determined to have been incurred in the line of duty was incurred otherwise." Id. The Federal Circuit noted that § 1159 "does not protect the fact of a disability, and therefore, the change in the determination of the applicable Diagnostic Code likewise is unprotected." Id. Specifically regarding the facts in Read, the Federal Circuit agreed with the government's argument that because the same disability was involved in both the initial disability determination and the later specific identification of the particular muscle group that was affected, the change in the Diagnostic Code did not sever anything. His disability was still service-connected even though the Diagnostic Code may have changed. Id. Now, the Board recognizes that severance of service connection is not at issue in the current appeal. Nevertheless, the Board finds that the findings in Read are still useful in the discussion of the current appeal. In Read, the Federal Circuit discussed the importance of protecting the underlying disability rather than the diagnostic code assigned to it. In that regard, the Federal Circuit noted that the change in diagnostic code did not affect the existence of that disability. The record shows that the Veteran's right neck disability was characterized initially as SFW of the right side of neck with incomplete paralysis of facial nerve, slight muscle weakness and scars and assigned a 10 percent evaluation under Diagnostic Code 8207, effective January 1, 1972. There is no indication in the record that this rating was based on fraud. At the time of the March 2002 rating decision which recharacterized the Veteran's right side of the neck with incomplete paralysis of the facial nerve, slight muscle weakness and scars (under Diagnostic Code 8207) to muscle weakness, muscle group XXII, SFW (under Diagnostic Code 5322), the 10 percent evaluation had been in effect for more than 20 years and was protected. Taking into consideration the Court and Federal Circuit decisions in Murray and Read, respectively, and the specific factual circumstances of the current appeal, the Board finds that the reassignment of the Veteran's service-connected right neck disability from Diagnostic Code 8207 to Diagnostic Code 5322 was based on an identification by VA that the symptomatology under Diagnostic Code 8207 did not exist at the time of initial disability evaluation; however, symptoms that later formed the basis for the change in diagnostic code were also present at the time of the initial disability evaluation. The change in diagnostic code did not result in a reduction in the disability evaluation, since the same disability and the same manifestations of that disability were involved. Ultimately, the Veteran's protected rating for his 10 percent evaluation for a right neck disability remains in effect. Based on the foregoing, the Board finds that restoration of the Veteran's 10 percent evaluation for a right neck disability under Diagnostic Code 8207 is not warranted. As the Veteran's 10 percent evaluation for a right neck disability under Diagnostic Code 8207 has not been restored, no discussion of whether the Veteran's assignment of a 10 percent evaluation for a right neck disability under Diagnostic Code 5322 results in pyramiding is required. Higher Evaluation Claim The Veteran is seeking a higher than 10 percent evaluation for muscle weakness, muscle group XXII, SFW. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56. First, an open comminuted fracture with muscle or tendon damage will be rated as severe, unless (for locations such as the wrist or over the tibia) the evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). 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). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Under Diagnostic Codes 5301 to 5323, muscle injury disabilities are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d). A slight muscle disability is one where the injury was a simple wound of muscle without debridement or infection. The service department record would show a superficial wound with brief treatment and return to duty. There would be healing with good functional results. There are no cardinal signs or symptoms of muscle disability as denied in 38 C.F.R. § 4.56(c). Objectively, there would be a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function, or metallic fragments retained in muscle tissue. A moderate muscle disability is one where the injury was either through and through, or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record (or other evidence) would show in service treatment for the wound. There would be a consistent complaint of one or more of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, the entrance (and if present, exit) scars would be small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance, or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side would be present. A moderately severe muscle disability is one where the injury was either through and through, or a deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), and, if present, an inability to keep up with work requirements. Objectively, the entrance (and if present, exit) scars would indicate the track of missile through one or more muscle groups. There would be indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. A severe muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements. Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track. Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscles would swell or harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function. If they happen to be present, the following would also be signs of severe muscle injury: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. During the relevant appeal period, the Veteran's residual of shrapnel wound injury to muscle group XXII, right side of the neck, has been currently evaluated as 10 percent disabling, effective January 1, 1972, under 38 C.F.R. § 4.73, Diagnostic Code 5322. As has already been established and discussed in detail above, this evaluation is a protected rating and may not be reduced except by showing that such rating was based on fraud. 38 C.F.R. § 3.951(b). Muscle Group XXII encompasses rotary and forward movements of the head; respiration; deglutition and the following muscles of the front of the neck: (1) trapezius I; (2) sternocleidomastoid; (3) the "hyoid" muscles; (4) sternothyroid; and (5) digastric. Under Diagnostic Code 5322, a 10 percent rating is warranted for moderate disability. A 20 percent rating is warranted for moderately severe disability. A 30 percent rating is warranted for severe disability. In July 2009, the Veteran underwent a General Medical examination. The VA examiner noted that scars on the right side of the neck continue to pull with cervical left sidebending and left rotation. No pain was found, just a pulling sensation. Cervical spine range of motion was within normal limits. No soft tissue, bony tenderness, or deformity was present. Strength was 5/5 without pain, fatigue, or motion changes with repetitive testing. No muscle atrophy was found. The sensory examination showed grossly intact and symmetric results. In May 2013, the Veteran was afforded another VA examination. The VA examiner noted that the Veteran had a muscle injury in muscle group XXII on the right side. The VA examiner identified a cardinal sign and symptom associated with the muscle disability, which was consistent loss of power on the right side. Based on a careful review of the subjective and clinical evidence, the Board finds that the Veteran's muscle weakness, muscle group XXII, SFW, does not warrant a higher 20 percent evaluation under Diagnostic Code 5322. In other words, the Veteran's muscle disability is not characterized as a moderately severe muscle disability where the injury was either through and through, or a deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. The evidence demonstrates that the Veteran's muscle disability has a cardinal sign or symptom of consistent loss of power. However, the other objective findings do not show that the Veteran's muscle disability exhibits entrance and exit scars, indications on deep palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Therefore, there is no basis upon which to award the Veteran a higher 20 percent evaluation under Diagnostic Code 5322 for his muscle weakness, muscle group XXII, SFW. The Board has considered whether a separate rating for other disabilities associated with the muscle injury is warranted. The Veteran is already service-connected for his right neck scar. The Veteran has not reported, nor does the evidence show, that he has any orthopedic or neurologic manifestations of his injury. The pertinent medical evidence of record fails to show any neurologic and orthopedic manifestations associated with the service-connected right neck disability. Therefore, the Board concludes that the Veteran does not have symptomatology associated with his service-connected right neck disability other than the scar for which a separate rating has been assigned already. For these reasons, the Board finds that the Veteran's service-connected right neck disability is no more than 10 percent disabling. In summary, the preponderance of the evidence weighs against the Veteran's higher evaluation claim for muscle weakness, muscle group XXII, SFW. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to the restoration of a 10 percent evaluation for SFW of the right side of neck with incomplete paralysis of facial nerve, slight muscle weakness and scars under Diagnostic Code 8207 is denied. Entitlement to an evaluation in excess of 10 percent for muscle weakness, muscle group XXII, SFW, under Diagnostic Code 5322 is denied. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs