Citation Nr: 18143652 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-40 143 DATE: October 19, 2018 ORDER The appeal on the claim of service connection for a lung condition, claimed as a result of Agent Orange exposure, is dismissed. Entitlement to an initial compensable rating for residual of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) is denied. Entitlement to an initial compensable rating for residuals of a shrapnel wound left lower extremity (anterior lateral lower leg, lateral knee, and medial knee) is denied. REMANDED Issue of entitlement to an initial rating in excess of 10 percent for residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis, is remanded. Issue of entitlement to an initial compensable rating for residuals of a shrapnel wound posterior head is remanded. REFERRED The issue of service connection for traumatic brain injury was specifically raised by the Veteran for the first time in his October 2015 VA Form 9 and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran withdrew his appeal with respect to the claim of service connection for a lung condition, claimed as a result of Agent Orange exposure. 2. Throughout the period on appeal, the weight of the evidence supports that the Veteran’s residual of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) has been manifested by no more than a slight disability to muscle group VII and VIII, with evidence showing loss of power in his right forearm at times in the morning, but no evidence of lower threshold fatigue after average use, loss of deep fascia or muscle substance, atrophy, impaired tonus, or metallic fragments retained in muscle tissue. 3. Throughout the period on appeal, the weight of the evidence supports that residuals of a shrapnel wound left lower extremity (anterior lateral lower leg, lateral knee, and medial knee) has been manifested by no more than a slight disability to muscle group XII, with some evidence of lowered threshold fatigue after average use, but no evidence of fascial defect, atrophy, impaired tonus, or metallic fragments retained in muscle tissue. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the claim of service connection for a lung condition, claimed as the result of Agent Orange exposure, has been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for an initial compensable rating for residual of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.57, 4.73, Diagnostic Code 5307 (2017). 3. The criteria for an initial compensable rating for residuals of a shrapnel wound left lower extremity (anterior lateral lower leg, lateral knee, and medial knee) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.57, 4.73, Diagnostic Code 5314 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to November 1969. The Board notes that the Veteran served in the Republic of Vietnam during the Vietnam War Era, and received the Purple Heart Medal and Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA). The Veteran perfected his appeal. See January 2014 Notice of Disagreement (NOD); October 2015 Statement of the Case (SOC); October 2015 rating decision; October 2015 VA Form 9. The Veteran testified before the undersigned Veterans Law Judge in a March 2016 hearing. A transcript of the hearing is associated with the claims file. The Board acknowledges that VA received additional evidence since the October 2015 SOC, but the evidence is either duplicative, cumulative, or not pertinent to the claims being decided. The August 2018 VA examination of the Veteran’s knee and lower leg conditions is new and material evidence for the issue of entitlement to an initial rating in excess of 10 percent for residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis, which is being remanded. Withdrawn Claim Entitlement to Service connection for a lung condition, claimed as a result of Agent Orange exposure. An appeal may be withdrawn by an appellant or by appellant’s authorized representative. 38 C.F.R. § 20.204(a). Except when made on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b)(1). An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b)(3). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In this case, the Veteran and his representative stated on the record at the March 2016 hearing that the Veteran did not wish to continue with his claim of service connection for a lung condition, and withdrew the appeal. The request was made before the Board issued a final decision on the claim and, as it was made on the record at a hearing, it does not need to be in writing. The Board finds the criteria for withdrawal of the appeal on the Veteran’s claim of service connection for a lung disorder are met. Accordingly, no further action is warranted by the Board and the appeal of this claim is dismissed. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 (DC) 5301 through 5323, disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). The Court, citing Robertson v. Brown, 5 Vet. App. 70 (1993), has held that 38 C.F.R. § 4.56(d) is essentially a totality of the circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). A slight disability of the muscles contemplates: a simple wound of muscle without debridement or infection; a service department record of superficial wound with brief treatment and return to duty; healing with good functional results; or no cardinal signs or symptoms of a muscle disability. 38 C.F.R. § 4.56 (d)(1). Objectively, a slight muscle disability consists of: a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. Id. A moderate muscle disability contemplates: a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service treatment record or other evidence of in-service treatment for the wound; or a record of consistent complaints of one or more of the cardinal signs and symptoms of a muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. 38 C.F.R. § 4.56 (d)(2). Objectively, a moderate muscle disability consists of: 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 impairment of muscle tonus and loss of power; or lowered threshold of fatigue when compared to the sound side. Id. In evaluating the Veteran’s disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial compensable rating for residuals of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle). The Veteran’s service connected residual of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) is evaluated under 38 C.F.R. § 4.73, DC 5307. It is currently classified as slight, which is rated at zero percent and noncompensable, effective July 31, 2012. The next higher rating is 10 percent, which is warranted for a moderate muscle disability. 38 C.F.R. § 4.56 (d)(2), 4.73, DC 5307. The Veteran’s representative contends that the Veteran’s injuries more closely resemble a moderate muscle disability based on his constant pain and limitations of use due to those injuries. See December 2015 Statement in lieu of VA Form 646. The Veteran relates to having deep muscle damage with constant pain, instability, and limitation in use and range of motion due to his residuals of shrapnel wounds. See January 2014 NOD; October 2015 VA Form 9. During the March 2016 hearing, the Veteran testified to usually not having problems lifting, but feels a loss of strength in his forearm muscles in the morning. The Veteran also submitted two buddy statements indicating they observed the Veteran having difficulty getting in and out of his truck, driving, climbing stairs, standing, walking for a long period, gardening, mushroom hunting, and having pain with stooping, bending, or moderate twisting of his knee. See December 16, 2014 Form VA 21-4138; December 18, 2014 Form VA 21-4138. After careful review of the evidence, the Board determines that the Veteran’s residuals of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) more closely approximates the criteria for a slight muscle injury throughout the period on appeal. While the Board finds the Veteran’s statements about a loss of strength in his forearm muscles in the morning credible, it does not support a moderate muscle disability. In December 2014 telephone conversation, the Veteran related to a Decision Review Officer (DRO) that he does not really have any symptoms in the right forearm. See December 2014 VA Form 21-0820. The Veteran testified at the March 2016 hearing to usually not having any problems lifting. Most of the Veteran’s assertions are about pain and restrictions from the residuals of his shrapnel injuries related to the wound to his left lower extremity and knee, and not his right upper extremity. Likewise, the restrictions given in the December 2014 buddy statements refer to activities limited by the Veteran’s knee with no mention of his right upper extremity. Overall, the lay evidence suggests the residuals of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) more closely approximates a slight disability of muscles. In the Veteran’s October 2015 VA Form 9, the Veteran asserts to having deep muscle damage causing his pain. However, while the Veteran is competent to report having experienced symptoms of pain, whether the Veteran has deep muscle damage falls outside of the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge the body system and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. Instead, probative weight is given to the September 2013 VA examiner’s opinion that the Veteran has a penetrating muscle injury due to a shrapnel wound to his right anterior forearm with a minimal scar and no known fascial defects or evidence of fascial defects associated with a muscle injury. See September 2013 VA examination. In addition, the VA examiner found 5/5 strength, no muscle atrophy, and no muscle impact to functioning in the right anterior forearm. The VA examiner also indicated that imaging studies were performed and there is no evidence of retained metallic fragments in any muscle group. The VA examiner is a qualified medical professional competent to assess the Veteran’s residual of shrapnel wound right upper extremity and the opinion amounts to probative evidence when compared against the current evidence showing few complaints about his right upper extremity. The VA examiner’s findings are also consistent with January 1969 Report of Medical Examination that is closer in time to when the Veteran’s in service injuries occurred. The Report noted a one-inch scar on the right forearm and assigned the Veteran a PULHES profile of “1” for all systems. A PULHES profiles of “1” indicates a high level of medical fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (indicating that a “PULHES” profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The “P” stands for “physical capacity or stamina,” the “U” indicates “upper extremities,” the “L” is indicative of “lower extremities,” the “H” reflects the condition of the “hearing and ears,” the “E” is indicative of the “eyes,” and the “S” stands for “psychiatric condition”). As noted above, 38 C.F.R. § 4.56 is a totality-of-the-circumstances test, and no single factor is per se controlling. While finding the Veteran credible in having occasional loss of power in his right forearm in the morning, the overall evidence shows one sick call treatment for his shrapnel injuries, no evidence of treatment with debridement or infection, minimal scarring, no evidence of fascial atrophy, and no retained metallic fragments in muscle tissue. Thus, the Board finds the preponderance of the evidence supports that the Veteran’s residuals of shrapnel wound right upper extremity (anterior and posterior lateral forearm muscle) more closely approximates a slight muscle disability and a noncompensable rating. 2. Entitlement to an initial compensable rating for residuals of a shrapnel wound left lower extremity (anterior lateral lower leg, lateral knee, and medial knee). The Veteran’s service connected residuals of left lower extremity (anterior lateral lower leg, lateral knee, and medial knee) is evaluated under 38 C.F.R. § 4.73, DC 5312. It is currently classified as slight, which is rated at zero percent and noncompensable, effective July 31, 2012. The next higher rating is 10 percent, which is warranted for a moderate muscle disability. 38 C.F.R. § 4.56 (d)(2), 4.73, DC 5312. The Veteran’s representative contends that the Veteran’s injuries more closely resemble a moderate muscle disability based on his constant pain and limitations of use due to those injuries. See December 2015 Statement in lieu of VA Form 646. As discussed above, most of the Veteran’s assertions, and the two December 2014 buddy statements, related to restrictions due to his left knee. See January 2014 NOD; October 2015 VA Form 9; December 16, 2014 Form VA 21-4138; December 18, 2014 Form VA 21-4138. The Veteran testified during the March 2016 hearing that he gets tired and has pain walking uphill. The Veteran testified that he gets cramps in his lower leg and calf after walking too much and sometimes when he wakes up. After careful review of the evidence, the Board determines that the Veteran’s residuals of left lower extremity (anterior lateral lower leg, lateral knee, and medial knee) more closely approximates the criteria for a slight disability of muscles throughout the period on appeal. The Board finds the Veteran’s March 2016 testimony about getting cramps in his left lower leg and calf credible, but the evidence does not suggest it is a lowered threshold when compared to his sound right side. The Veteran testified that he believed he retained strength in the left lower extremity, but that his legs get tried if he walks too much. Likewise, the Veteran testified he was told to stay away from hills and that he experiences lower leg pain while walking up an upgrade and has cramps in the morning. The testimony does not indicate a difference in threshold between the left and right lower extremity and that cramps occur in the morning without use. In addition, as discussed above, the December 2013 buddy statements are about his left knee restrictions and the Veteran related to a DRO that his main concern is the arthritis in his left knee. See December 16, 2014 Form VA 21-4138; December 18, 2014 Form VA 21-4138; December 2014 VA Form 21-0820. Probative weight is given to the September 2013 VA examiner’s finding that the Veteran had a penetrating muscle injury to the left lateral lower leg that resulted in a minimal scar with no known, or evidence of, fascial defects associated with a muscle injury. The VA examiner found 5/5 strength in ankle dorsiflexion, muscle group XII, and no evidence of retained metallic fragments in any muscle group. The VA examiner’s findings are consistent with the January 1969 Report of Medical Examination, which noted a two-inch scar on the left lower leg and assigned the Veteran a PULHES profile of “1,” for his lower extremities, indicating a high level of fitness. See Odiorne, 3 Vet. App. at 457. While the Board finds the Veteran credible in having cramps in his lower leg after walking too long and in the mornings, the rest of the evidence shows one sick call treatment for his shrapnel injuries, no evidence of treatment with debridement or infection, minimal scarring, no evidence of fascial defect or atrophy, no retained metallic fragments in muscle tissue, and no particularly lowered threshold of fatigue when compared to his sound right side. Thus, the Board finds the preponderance of the evidence supports that the Veteran’s residuals of a shrapnel wound left lower extremity (anterior lateral lower leg, lateral knee, and medial knee) more closely approximates a slight muscle disability and a noncompensable zero percent rating. REASONS FOR REMAND 1. Issue of entitlement to a rating in excess of 10 percent for residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis. While the record contains contemporaneous VA examinations regarding the Veteran’s left knee, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran was afforded an VA examination in December 2014 and another in August 2018 for his knees. While the examiners stated that an opinion could not be provided without resort to speculation, they did not indicate that the speculation was due to lack of knowledge within the medical community. It is unclear if the examiners attempted to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. The Board notes that the August 2018 VA examiner indicated the Veteran related to having a flare on the day of the examination and the examiner found a left knee flexion of 0 to 45 degrees and extension of 45 to 0 degrees. This is a more restrictive range of motion than the December 2014 VA examiner finding for a left knee flexion of 0 to 95 degrees and extension of 95 to 0 degrees. However, it is unclear if the more restrictive range of motion is due to a flare up or worsening symptoms over time. Accordingly, the Board finds a new VA examination is needed. 2. Issue of entitlement to a compensable initial rating for residuals of a shrapnel wound posterior head. The Board cannot make a fully-informed decision on the issue of a compensable rating for residuals of a shrapnel wound posterior head because clarification by a VA examiner is needed on its location and muscle injury findings, if any. The September 2013 VA examiner indicated that the Veteran has a shrapnel wound to the posterior head as a diagnosis pertaining to muscle injuries, but a shrapnel wound to the posterior head is not idenified in the exam under “Section III: Location of Muscle Injury.” No rationale was given, so it is unclear if it is the VA examiner’s opinion that the Veteran does not actually have a muscle injury to the torso or neck at Muscle Group XXIII . The Board notes that the Veteran is service connected for residuals of a shrapnel wound posterior head, indicating that it is a current disability. See October 2013 rating decision. Accordingly, the Board determines that a new examination is needed. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis and residuals of a shrapnel wound to the posterior head, and provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a private treatment provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Schedule the Veteran for an examination of the current severity of his residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis alone and discuss the effect of the Veteran’s residuals of a shrapnel wound left lower extremity (anterior thigh) with left knee post-traumatic arthritis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a shrapnel wound to the posterior head. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to and residuals of a shrapnel wound to the posterior head alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel