Citation Nr: 1805647 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 05-41 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to an increased evaluation for gunshot wound of the right thigh, currently evaluated as 10 percent disabling. 3. Whether there was a timely filed notice of disagreement to the rating decision of November 1999 addressing the claim of clear and unmistakable error in a November 1977 rating decision that denied compensable ratings for residuals of gunshot wound of the thorax, abdomen, and right thigh. 4. Entitlement to a compensable rating, prior to October 27, 2002 for residuals of gunshot wounds of the thorax, respiratory obstructive pattern 5. Entitlement to an evaluation in excess of 60 percent from October 27, 2002 to February 28, 2013, for residuals of gunshot wounds of the thorax, respiratory obstructive pattern. 6. Entitlement to restoration of a 60 percent evaluation for residuals of gunshot wounds of the thorax, respiratory obstructive pattern. ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to October 1972. This matter is before the Board of Veteran' Appeals (Board) on appeal of rating decisions, dated in August 1993, in March 2003, and February 2010, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issues on appeal were last before the Board in March 2014 when they were remanded for additional evidentiary development. This case has now been returned to the Board for further appellate action. FINDINGS OF FACTS 1. The Veteran's erectile dysfunction is not causally or etiologically related to active service, and is not caused or aggravated by his service-connected diabetes mellitus. 2. Prior to October 27, 2002, the Veteran's residuals of gunshot wounds of the thorax closely approximate a 10 percent rating. 3. From October 27, 2002 to February 28, 2013, the residuals of the gunshot wounds of thorax more closely approximate a 60 percent disability rating. 4. The examination that served as a reduction in the 60 percent evaluation for residuals of the gunshot wounds of thorax was less thorough and complete than the examination granting the benefit. 5. The gunshot wound of the right thigh is manifest by a no more than a painful scar. 6. The Veteran, nor his representative at that time, filed a timely notice of disagreement to the rating decision of November 1999. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for erectile dysfunction, to include secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016). 2. Prior to October 27, 2002, the criteria for a 10 percent rating for residuals of a gunshot wound of the thorax, have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code (DC) 6843 (2016). 3. From October 27, 2002 to February 28, 2013, the criteria for a rating in excess of 60 percent for residuals of a gunshot wound of the thorax, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code (DC) 6843 (2016). 4. Gunshot wound of the right thigh is no more than 10 percent disabling. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (2016). 5. The Veteran's notice of disagreement filed November 27, 2005 to the rating decision of November 4, 1999 was not timely. 38 U.S.C. §§ 5103, 5104, 5107; 7105(b)(1); 38 C.F.R. §§ 3.159, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds that the Veteran has been afforded adequate assistance concerning the claim. Service treatment records (STRs) and pertinent post-service medical records have been obtained, and the Veteran has been afforded appropriate VA examinations in April 1994, February 1999, February 2003, February 2009, June 2010, January 2013, and January 2015. The examination results contained sufficient descriptive information to adjudicate accurately the claims. The Veteran has not identified any other evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service Connection Claims Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. In order to establish direct service connection for a disorder, there must be (1) competent evidence of a disability; (2) competent evidence of a disease contracted, an injury suffered in service; and (3) competent evidence of a nexus or connection between the disease or injury and the current disability. Secondary service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). General Legal Criteria for Increase Rating Claims Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period form the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson, 12 Vet. App. at 126. Residuals of gunshot wound to thorax Prior to October 27, 2002, the Veteran's service-connected residuals of gunshot wound of the thorax (traumatic chest wall defect) had been noncompensable under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6843. From October 27, 2002 to February 28, 2013, the Veteran's service-connected residuals of gunshot wound of the thorax had been rated at 60 percent disabling. From March 1, 2013, the Veteran's service-connected residuals of gunshot wound of the thorax have been rated at 30 percent disabling. Under DC 6843, an evaluation of 10 percent is warranted for FEV (forced expiratory volume) FEV-1 of 71 to 80-percent predicted, or; FEV-1/FVC (forced vital capacity) of 71 to 80 percent, or; DLCO (SB) (diffusion capacity of the lung for carbon monoxide by the single breath method) 66 to 80 percent predicted. An evaluation of 30 percent is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. An evaluation of 60 percent is warranted for FEV-1 of 40 to 55 predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). An evaluation of 100 percent is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of FEV in one second to FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor- pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension )(shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The first note to DC 6843 states that a 100 percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. The second note states that following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall be continued for three months from the first day of the month after hospital discharge. The last note states that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of muscle group XXI (DC 5321), however, will not be separately rated. Scar of the right thigh From October 27, 2002, the Veteran's service-connected gunshot wound of the right thigh has been rated at 10 percent disabling under DC 7804. Under 38 C.F.R. § 4.118, DC 7804, one or two scars that are unstable or painful is rated at 10 percent. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. A 30 percent evaluation is warranted for five or more scars that are unstable or painful. The first note to DC 7804 states that an unstable scar is one where, for any reason, there is a frequent loss of covering of skin over the scar. A second note states that if or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Finally, the last note to DC 7804 states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Timeliness of notice of disagreement A Veteran, or his or her representative must file a notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails a notice of the determination to the Veteran. Otherwise, that determination will become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302(a). Importantly, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of [his] current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Additionally, the Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Federal Circuit recognizes that the Board has an inherent fact-finding ability. Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001); see also 38 U.S.C. § 7104 (a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Board notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Direct service connection for erectile dysfunction The Veteran appealed the denial of service connection for erectile dysfunction. In order to establish direct service connection for a disorder, there must be (1) current disability; (2)an injury or illness incurred or aggravated in active service; and (3) a nexus or connection between the injury or disease in service and the current disability. Here, the record shows that the Veteran has erectile dysfunction. Yet, the record is devoid of an in-service injury or event, which would have caused or aggravated his erectile dysfunction. In the January 2015 VA examination, the Veteran reported the onset of erectile dysfunction in the 1970's. The Veteran is competent to report on lay observable conditions; however, the Veteran's service treatment records do not reflect any findings, complaints, treatment or a diagnosis of erectile dysfunction in service. In addition, there are no medical records that show the Veteran was treated for erectile dysfunction in the 1970s. Moreover, the Veteran filed his first claim with the VA in September 1972 and made no mention of erectile dysfunction. Furthermore, the Veteran first claimed erectile dysfunction in December 2009, and contended that it was secondary to his diagnosis of diabetes mellitus, which was diagnosed in 2005. Taking into account the Veteran's claim that his erectile dysfunction was secondary to his diabetes mellitus and the fact that he did not claim erectile dysfunction until December 2009, as well as the lack of service treatment records showing erectile dysfunction, the Board finds that direct service connection for erectile dysfunction fails as it was not incurred or aggravated by active service. Any assertion that he may have had ED during service is inconsistent with the record and is not credible. Secondary service connection The Veteran stated that his erectile dysfunction was secondary to his service-connected diabetes mellitus. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this instance, the Veteran has erectile dysfunction, likely since January 2002. In a January 2002 primary care note, his physician directed the Veteran to start on Viagra as part of his treatment. Additionally, in his August 2003 primary care note, his physician noted that the Veteran came in for a refill on Viagra, but the Veteran reported that he was not sure how long he had erectile dysfunction. However, based on medical records, the Veteran has been on medication since 2002. See January 2002 Primary Care Note. Likewise, in March 2009 VA examination, the Veteran reported having erectile dysfunction for at least the last five years where he had trouble getting and maintaining an erection. The Veteran was diagnosed with diabetes mellitus type II in November 2005 based on a routine blood test. See November 2005 Addendum. The Veteran's diabetes mellitus was service connected effective December 2008. Here, the Veteran's erectile dysfunction predates the onset of his diabetes mellitus. Therefore, the Veteran's diabetes mellitus did not cause his erectile dysfunction. However, an issue is whether the diabetes mellitus aggravated the erectile dysfunction. However, the medical evidence does not support the Veteran's argument. In the March 2009 VA examination, the physician opined that since his type II diabetes is stable with diet and exercise, coupled with the fact that his erectile dysfunction preceded diabetes, it is not due to diabetes mellitus. In a January 2015 VA examination, the examiner opined that the Veteran's service-connected diabetes mellitus did not aggravate his erectile dysfunction. During the examination, the Veteran reported that the onset of his erectile dysfunction was in the 1970's. The examiner using that information, coupled with the fact that the Veteran was diagnosed with diabetes in 2005, opined that erectile dysfunction is a multifactorial process. The examiner stated that according to the medical reference UpToDate, in addition to age, the best predictors of erectile dysfunction are diabetes mellitus, hypertension, obesity, dyslipidemia, cardiovascular disease, smoking, and medication use. He continued that the Veteran's erectile dysfunction is most likely due to the combination of his multiple recognized risk factors. It cannot be determined without resorting to speculation exactly how much each individual risk factor contributed to the erectile dysfunction. The examiner continued that the Veteran's diabetes has been well controlled, with no complication from the diabetes, so any impact of the diabetes on the erectile dysfunction would most likely be minimal, if any. He added that especially in view of the fact that the erectile dysfunction began some forty years prior to the onset of diabetes, it is his opinion that it is less likely than not the diabetes has clinically or significantly aggravated (i.e. permanently worsened) the erectile dysfunction. Based on the evidence of record and the VA examinations of March 2009 and January 2015, the Board finds that the Veteran's erectile dysfunction is not caused or aggravated by diabetes mellitus. The preponderance of the evidence is against finding that the Veteran's erectile dysfunction is related to service, or his service-connected disease or injury. 38 C.F.R. §§ 3.303, 3.310. For these reasons, the benefit-of-doubt standard of proof does not apply, and service connection for the erectile dysfunction must be denied. See 38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased rating for residuals of gunshot wound to thorax The procedural history for the Veteran's claim for increased rating for residuals of gunshot wound to thorax is pertinent to deciding the effective date for an increased rating claim. Here, in a rating decision in August 1993, the RO denied the claims for compensable ratings for gunshot wound residuals of the thorax, abdomen, and right thigh. Notice of the rating decision was mailed to the Veteran in September 1993. In November 1993, the Veteran requested a hearing on the RO's denial of the compensable ratings. In February 1994, a hearing was held, and the Veteran took issue with a noncompensable ratings for the gunshot wound residuals. The hearing was transcribed on March 3, 1994. After further development, the RO again denied the claims for increase in a rating decision in December 1994. In a letter, dated in November 1997, the RO notified the Veteran that there was no timely notice of disagreement to the rating decision in August 1993, denying the claims for increase for the gunshot wounds, and no statement of the was issued addressing the claims. In consideration of the Veteran's pleadings, the Veteran's statement at the hearing in February 1994 before the RO that he took issue with the noncompensable ratings for the gunshot wound residuals, when later reduced to a writing in the transcript, was a notice of disagreement with date of certification of the transcript by VA, being the date of filing, that is, March 1994. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Pursuant to a Board remand in March 2008, a statement of the case was issued in May 2010 addressing the claims for increase, denied in the rating decision in August 1993 rating decision. The Veteran subsequently perfected the appeal of the claims in July 2010. In a June 2, 1994 VAMC general medical note, the Veteran was given a pulmonary function test which showed an FVC of 79 percent, and FEV-1 of 78 percent and a FEV-1/FVC of 75 percent. Based on 38 C.F.R. § 4.97, DC 6843, an evaluation of 10 percent is warranted for FEV-1 of 71 to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) (diffusion capacity of the lung for carbon monoxide by the single breath method) 66 to 80 percent predicted. Therefore, the Board finds that based on the June 2, 1994 general medical note, the Veteran's residuals of gunshot wounds to the thorax more closely approximated to a 10 percent rating. The Veteran's attorney filed a new claim for increased evaluation for residuals of gunshot wounds to be effective from October 27, 2002. As such, from October 27, 2002 to February 28, 2013, the Veteran's residuals of gunshot wounds to the thorax more closely approximated to a 60 percent disability rating. Specifically, in a February 2003 VA examination, a pulmonary function test revealed the Veteran's FVC to be 71 percent, FEV to be 54 percent, and a FEV-1/FVC ratio of 55. The physician stated that the Veteran has an obstructive pattern, with moderate impairment. Adding that he cannot rule out concomitant restriction or air trapping. As mentioned above, an evaluation of 60 percent is warranted for an FEV-1 of 40 to 55-percent predicted, or a FEV-1/FVC (ratio) of 40 to 55 percent. See 38 C.F.R. § 4.97, DC 6843. Thus, the Board finds that the Veteran's residuals of gunshot wounds to the thorax more closely approximated to a 60 percent disability rating from October 27, 2002 to February 28, 2013. Therefore, for the foregoing reasons and bases, the Board finds the preponderance of the relevant evidence supports, a 10 percent rating prior to October 26, 2002 for the Veteran's residuals of gunshot wounds to the thorax. Additionally, from October 27, 2002 to February 28, 2013, the Board finds the preponderance of the relevant evidence supports, a 60 percent rating for the Veteran's residuals of gunshot wounds to the thorax. A rating higher than 60 percent for that period is not warranted because there is no evidence of the Veteran having a FEV-1 less than 40 percent of predicted value, or; a ratio of FEV-1 to FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption. All reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Reduction/restoration In a January 2013 rating decision, the RO decreased the Veteran's service-connected residuals of gunshot wound, respiratory obstructive pattern, from 60 percent disabling to 30 percent disabling from March 1, 2013. The latest VA examination to support the RO's determination was January 2013. In that January 2013 VA examination, the Veteran's service-connected residuals of gunshot wounds were evaluated but a pulmonary function test (PFT) was not conducted to determine the Veteran's lung capacity. No measurements were taken of the Veteran's FEV-1, FVC, or DLCO during that examination. In fact, on the January 2013 VA examination, the physician indicated that no PFT was conducted and the results were left blank. Therefore, the January 2013 VA examination as it relates to the Veteran's service-connected residuals of gunshot wound, respiratory obstructive pattern, was inadequate. Moreover, as the January 2013 VA examination was inadequate to determine the Veteran's lung capacity, the examination was less adequate than the evaluation upon which the 60 percent evaluation was granted. Therefore, the 60 percent evaluation is restored. Increased rating for residuals of gunshot wound to right thigh As way of procedural history, the Veteran's attorney at that time filed a claim for an increased evaluation for residuals of gunshot wounds to the thorax, abdomen and right thigh on September 9, 1997. A rating decision of March 1998 denied the increase for those conditions. The Veteran's attorney filed a timely notice of disagreement received in April 1998. An SOC was furnished in May 1999, but a VA Form 9 was not received timely. Thus, the Veteran's attorney filed a new claim for increased evaluation for residuals of gunshot wounds to be effective from October 27, 2002. The Board notes that scar disabilities are evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, DC 7800 to 7805. The schedular criteria for rating scars have undergone revision since the Veteran filed his claim. The amendment, affecting Diagnostic Codes 7800-7805, was effective October 23, 2008. However, those revisions are applicable only to claims filed on or after October 23, 2008. 73 Fed. Reg. 54, 708 (Sept. 23, 2008). Additionally, a veteran rated under the previous criteria may request review under the revised criteria. In this case, the Veteran submitted his claim prior to 2008, and has not requested such consideration. Moreover, under 4.118, in no case will the award be effective before October 23, 2008. It should be noted that the Veteran's residuals of gunshot wounds to his right thigh was evaluated at 10 percent from October 27, 2002, which is a similar rating he would receive under the revised DC 7804. The 10 percent evaluation from October 27, 2002 was granted for a superficial scar that was painful on examination as revealed in the February 2003 VA examination. In the February 2003 VA examination, the Veteran reported burning sensation in the right groin area but with no tenderness to palpation. However, the Board notes that in a February 1999 VA examination, the Veteran reported numbness, burning and tingling distal to the residual wound and scar. He reported that these sensations were constant, bothered him, and was difficult. Additionally, the examiner stated that the scar was superficial. Importantly, there does not appear to be a difference between the two examinations, and under the criteria prior to October 2008 for DC 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. 38 C.F.R. § 4.118 (2008). The Board finds that the Veteran's residuals of gunshot wounds to the right thigh closely approximated to a 10 percent rating. In a January 2013 VA examination, the examiner indicated that the Veteran's right thigh scar was 14cm2, superficial in nature, and asymptomatic. In fact, the Veteran reported that the only symptomatic scar was the chest scar, which had a burning sensation at the entrance wounds. Therefore, for the foregoing reasons and bases, the Board finds the preponderance of the relevant evidence supports no more than a 10 percent rating for residuals of gunshot wounds to the right thigh. Extraschedular consideration Extraschedular Rating While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Rating Schedule contemplates the disability picture, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, Veteran's residuals of gunshot wounds to his thorax and right thigh are reasonably contemplated by the rating schedule. Additionally, this case does not present such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. For these reasons, the Rating Schedule contemplates the disability picture, and the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Moreover, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 Timeliness of notice of disagreement to rating decision of November 3, 1999 The Board finds that the Veteran's notice of disagreement of November 2005 to the rating decision of November 1999, untimely on its face. As a brief background, in a rating decision from November 1999, the RO found that there was no clear and unmistakable error in the rating decision by the RO in November 1977, denying compensable ratings for residuals of gunshot wounds. In November 1999, counsel for the Veteran stated that he was representing the Veteran on all issues pending before the RO to include the claim of clear and unmistakable error. In April 2001, counsel for the Veteran asked the RO for the status of the claim of clear and unmistakable error. In December 2002, the RO notified counsel for the Veteran that a notice of disagreement had not been filed to the rating decision in November 1999, adjudicating the claim of clear and unmistakable error in the rating decision by the RO in November 1977, denying compensable ratings for the residuals of gunshot wounds. In March 2004, counsel for the Veteran again raised the claim of clear and unmistakable error in the rating decision by the RO in November 1977, denying compensable ratings for the residuals of gunshot wounds. In November 2005, counsel for the Veteran referred to the rating decision by the RO in November 1999, denying the claim of clear and unmistakable error on the ratings of the residuals of the gunshot wounds and he stated that the Veteran intended to file a substantive appeal to perfect the appeal. In December 2005, the Veteran filed a substantive appeal to the statement of the case, dated in November 2005, addressing the claims for an effective date prior to October 27, 2002, for a 60 percent rating for residuals of a gunshot wound of the thorax and a 10 percent rating for residuals of a gunshot wound of the right thigh. In the statement of the case, RO cited as evidence the rating decision of November 1999, denying the claim of clear and unmistakable error in rating the residuals of the gunshot wounds. In January 2006, counsel for the Veteran separately filed a substantive appeal. Considering all pleadings of counsel to the include the statement of November 2005, the Board construed the statement of November 2005 as a notice of disagreement to the rating decision of November 1999, denying the claim of clear and unmistakable error in rating the residuals of the gunshot wounds which is untimely on its face. As stated above, a Veteran, or his or her representative must file a notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails a notice of the determination to the Veteran. Otherwise, that determination will become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302(a). Therefore, the Board finds that the November 2005 notice of disagreement to the rating decision of November 1999, was untimely. ORDER Service connection for erectile dysfunction, as secondary to service-connected diabetes mellitus is denied. Prior to October 27, 2002, entitlement to an increased rating of 10 percent for service-connected residuals of gunshot wounds of the thorax is granted subject to the laws and regulations governing monetary awards. From October 27, 2002 to February 28, 2013, entitlement to an increased rating in excess of 60 percent for the residuals of the gunshot wounds of the thorax is denied. Prior to October 27, 2002, entitlement to an increased rating of 10 percent for service-connected residuals of gunshot wound of the right thigh is granted subject to the laws and regulations governing monetary awards. From October 27, 2002, entitlement to an increased rating in excess of 10 percent, for service-connected residuals gunshot wound of the right thigh is denied. A 60 percent evaluation for residuals of gunshot wound to the thorax is restored. The November 2005 notice of disagreement to the rating decision of November 1999 was not timely. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs