Citation Nr: 18150967 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 10-41 945 DATE: November 16, 2018 ORDER Entitlement to a compensable disability rating for status post-chest wall contusion prior to August 31, 2011, and in excess of 10 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to August 31, 2011, the Veteran’s status post-chest wall contusion manifested as slight severity. 2. As of August 31, 2011, the Veteran’s status post-chest wall contusion manifests with moderate severity. 3. The Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior for status post-chest wall contusion prior to August 31, 2011, and in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4,14, 4.73, Diagnostic Codes 5399-5321 (2017). 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from June 1994 to November 1994 and had additional service with the Army Reserves. During the course of the appeal, in an October 2011 rating decision, the RO increased the rating of the Veteran's status post-chest wall contusion to 10 percent effective August 31, 2011. As the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). In October 2014, the Veteran provided testimony before a Veterans Law Judge (VLJ). A copy of the transcript has been associated with the claims file. In a June 2017 letter, the Veteran was informed that the VLJ who conducted his hearing was no longer at the Board and that he may choose either to appear at a second hearing or for the Board to proceed with a decision on his claims. The letter set forth that a failure to respond within 30 days would result in the Board proceeding with a decision. The Veteran did not respond to this letter. These claims were previously before the Board in December 2014, February 2016, and August 2017, at which times they were remanded for additional development. Most recently, in August 2017, the Veteran’s claim was remanded to obtain a VA addendum opinion regarding the severity of his status post-chest wall contusion. The required VA medical opinion has been obtained and associated with the claims file. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA’s duty to notify was satisfied by an August 2008 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran’s service treatment records, VA medical treatment records, and indicated private medical records have been obtained. The Veteran was afforded VA examinations in November 2009, August 2011, June 2015, and October 2017 to evaluate the severity of his residuals of a chest wall contusion. The VA examinations are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they describe his disability in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency’s determination). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran has not 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). 1. Entitlement to a compensable disability rating for status post-chest wall contusion prior to August 31, 2011, and in excess of 10 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Entitlement to an initial compensable disability rating prior to August 31, 2011 The Veteran was granted service connection and assigned an initial noncompensable disability rating for status post-chest wall contusion with residual chronic pain (chest wall disability), effective July 30, 2008, in a December 2009 rating decision. The Veteran’s chest wall disability is evaluated under Diagnostic Code 5399-5321. 38 C.F.R. § 4.73. Under Diagnostic Code 5321, a slight injury warrants a noncompensable evaluation. A moderate injury warrants a 10 percent rating. A moderately severe or severe injury warrants a 20 percent rating. 38 C.F.R. § 4.73. Muscle group damage is categorized as mild, moderate, moderately severe, and/or severe, and evaluated accordingly. 38 C.F.R. § 4.56. Disability of a muscle group is based on impaired joint motion and its ability to perform its full work. Principal symptoms are weakness, fatigability, coordination, swelling, deformity, and atrophy. The principal factors are impairment of delicate coordination, strength of scar bound muscles, and lowering of fatigue threshold. Skin scars are incidental and negligible but allow for envisaging the whole track of the missile, including any bony or nerve involvement. It is the deep intra-and inter-muscular scarring that is disabling. Through-and-through or other wounds of the deep structure almost invariably cause scarring so that muscles pull against other muscles causing incoordination and loss of strength. Prolonged exertion brings about fatigue and pain, thus interfering with function. 38 C.F.R. §§ 4.47, 4.48, 4.49, 4.50, 4.51, 4.54. 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). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Robertson v. Brown, 5 Vet. App. 70 (1993); see also Tropf v. Nicholson, 20 Vet. App. 317 (2006). A slight disability of muscles is described as a simple wound of muscle without debridement or infection. The service department records would demonstrate a superficial wound with brief treatment and return to duty. Healing would be shown as having been with good functional results. No cardinal signs or symptoms of muscle disability would be shown and the scar would be minimal with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d). A moderate disability of the muscles may result from through and through or deep penetrating wounds of relatively short track by a single bullet or small shell or shrapnel fragment. The absence of the explosive effect of a high velocity missile and of residuals of debridement or of prolonged infection also reflects moderate injury. The history of the disability should be considered, including service department records or other sufficient evidence of hospitalization in service for treatment of the wound. Consistent complaints on record from the first examination forward of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, and an effect on the particular functions controlled by the injured muscles should be noted. Evidence of moderate disability includes entrance and (if present) exit scars which are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or failure in comparative tests. Id. A moderately severe disability of the muscles is characterized by evidence of a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection, or with sloughing of soft parts, or intermuscular cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. Id. A severe disability of the muscles is characterized by evidence of through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or explosive effect of a high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Id. The Veteran’s chest wall disability was evaluated in a November 2009 VA examination. At examination, the Veteran reported constant pain along his sternum that radiated to both sides of his chest. Regarding the Veteran’s chest wall disability, the examiner noted: On examination of his chest, there is no evidence of erythema, warmth, swelling, or tenderness. Lungs were clear to auscultation and percussion bilaterally. No tenderness to palpitation along the sternum or along the joints of the sternum and the ribs bilaterally. There is no evidence of muscle or nerve injury. There is no evidence of scarring, tissue loss, adhesion, or tendon damage. No evidence of muscle herniation, no loss muscle function. The Veteran’s chest wall disability does not meet criteria for a 10 percent disability rating because the November 2009 examination does not establish a moderate chest wall injury. The lack of swelling, tenderness, muscle or nerve injury, scarring, tissue loss, adhesion, or tendon damage indicates only a slight chest wall disability. Additionally, cardinal symptoms of muscle injury were not present. Further, his service treatment records (STRs) document the chest wall injury and no foreign body penetrated the Veteran’s chest wall area, instead he had lacerations of the bridge of the nose, scalp, and left upper extremity. There are no entrance or exit wounds due to his motor vehicle accident. He was not hospitalized for his injury. The Board acknowledges the Veteran’s statements that his chest wall disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements and testimony in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a compensable disability evaluation have been met. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for a chest wall disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board further notes that at a November 2014 hearing, the Veteran testified that the above-discussed November 2009 examination was not adequate for rating purposes because the VA examiner just “eye-balled” his chest before assessing severity. However, the November 2009 examination reports that a chest x-ray and three x-rays views of the Veteran’s sternum were considered as part of the examination. The examination also included an in-person examination of the Veteran and review of his prior medical history. Accordingly, the Board finds the November 2009 examination is adequate for purposes of determining disability severity. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a disability rating in excess of 10 percent as of August 31, 2011 The Veteran claims entitlement to a disability rating in excess of 10 percent for a chest wall disability. The Veteran’s noncompensable disability rating was increased to 10 percent, effective August 31, 2011, in an October 2011 rating decision. As noted in the Board’s August 2017 Remand, the Veteran completed multiple VA muscle injuries examinations. The results of those examinations were often at odds with the Veteran’s medical records and with results noted in the same examination. The August 2017 Remand noted: Additionally, the Veteran underwent a VA examination in August 2011, in which he was found to have residuals of a contusion to his mid-sternum, resulting in pain that interferes with the ability to lift, carry, exercise, work, drive long distances, sleep, and perform his activities of daily living. However, private treatment records from April 2012 show the Veteran was noted to have no active problems and good exercise habits. A review of symptoms showed the Veteran denied chest pain or discomfort, muscle aches, and sleep disturbances, and instead reported that he had no physical disability and that his activities of daily living were normal. A physical examination showed overall findings of his musculoskeletal system were normal. The Veteran underwent another VA examination in May 2015. The Veteran was noted to have a non-penetrating muscle injury of the thoracic muscles over his lower sternum. The objective medical findings showed no scar and fascial defects and the examiner found the muscle injury did not affect the muscle substance or function. However, the examiner concluded fatigue-pain and that the Veteran's “unrelenting pain makes almost any activity too painful to pursue.” Given the conflicting evidence, the Board finds that a clarifying opinion is necessary to determine the nature and extent of the Veteran's injury and its symptoms. In accordance the August 2017 remand directives, a new VA muscle injuries examination was completed and clarifying medical opinion was obtained in October 2017. The examination included an in-person examination of the Veteran and review of the Veteran’s claims file, including prior medical history and VA examinations. At examination the Veteran complained of “constant pain involving the entire chest, especially across the sternum and radiating across all the way to the back.” The examiner noted an injury to the Veteran’s thoracic muscle group. The Veteran did not exhibit any scars associated with the muscle injury. The Veteran was also negative for fascial defects associated with the muscle injury, and that the muscle injury did not affect muscle substance or function. The examiner noted that the Veteran was negative for cardinal signs or symptoms of a muscle disability. Muscle strength testing demonstrated normal strength. There were no additional pertinent physical findings, complications, conditions, and/or symptoms related the Veteran’s muscle injury. The examiner noted that there was no functional impact on the Veteran’s employment. Finally, the examiner concluded that the Veteran’s muscle injury was slight. The examiner opined: After reviewing the Veteran’s [claims] file, there were medical treatment records reflecting residual of chest wall contusion in [compensation and pension] exam dated 05/20/2015 as well as X­ray of the sternum reports no obvious abnormality 11/12/2009. Based on today’s history and physical examination, the findings were consistent with the claimed condition. In his case, the disability associated with the affected muscle groups XXI would be considered slight. Examiner specifies that there are limitations in the [V]eteran's functionality during chest pain of the sternum and back. Based on the above discussed medical evidence, the Board finds that the Veteran’s chest wall disability does not meet the criteria for a disability rating in excess of 10 percent. The Board finds that Veteran’s muscle injury is more accurately described as a moderate muscle injury, warranting the current 10 percent disability rating. The probative medical evidence does not establish a moderately severe or severe muscle injury. See 38 C.F.R. § 4.73, Diagnostic Code 5321. The Board acknowledges the Veteran’s hearing testimony that his chest wall disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements and testimony in this regard. Layno, 6 Vet. App. at 469. The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a disability rating in excess of 10 percent have been met. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for a chest wall disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities The Veteran claims entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a May 2015 application for TDIU, the Veteran notes that his last substantially gainful employment was in March 2014. As of May 21, 2015, the Veteran’s total combined disability rating is 70 percent. Further, as of May 21, 2015, the Veteran’s left wrist disability is rated at 70 percent. Accordingly, as of May 21, 2015, the Veteran meets the schedular requirements for entitlement to TDIU. See 38 C.F.R. § 4.16(a). After reviewing the probative medical evidence of record, the Board finds that the Veteran is entitled to a TDIU. The functional impact of the Veteran’s service-connected disabilities has been addressed in multiple VA examinations. In an October 2017 medical opinion discussing the Veteran’s service-connected status post-chest wall contusion, the VA physician stated that activity would often intensify and worsens chest pain, therefore, to refrain from aggravating the circumstance, the Veteran was limited to light physical and/or sedentary employment. The physician also stated that the Veteran’s standing and walking, and fine and gross manipulation of his hands was impaired. Further, an October 2016 VA wrist conditions examination notes simply that the “Veteran is unable to work” due to his service-connected left wrist arthrofibrosis with complex pain syndrome. A May 2015 VA wrist conditions examination notes that the Veteran has no use of his left hand and wrist due to chronic pain. (Continued on the next page)   Based on the above discussed medical evidence, the Board finds that the Veteran’s service-connected disabilities prevent him from being able to obtain or follow substantially gainful employment. Accordingly, the Board finds that entitlement to a TDIU is warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel