Citation Nr: 1815264 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 14-42 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include osteoarthritis, to include as secondary to service-connected residuals associated with a gunshot wound to the Veteran's right side and as secondary to parachute jumps during service. 2. Entitlement to service connection for a radiculopathy associated with a cervical spine disability, to include osteoarthritis, to include as being secondary to service-connected residuals of a gunshot wound to the Veteran's right side and secondary to parachute jumps during service. 3. Entitlement to service connection for a lumbar spine disability, to include osteoarthritis, to include as being secondary to service-connected residuals of a gunshot wound to the Veteran's right side and secondary to parachute jumps during service. 4. Entitlement to service connection for residuals associated with a gunshot wound to the Veteran's left side. 5. Entitlement to an earlier effective date for service connection for scars on the Veteran's right low back. 6. Entitlement to a compensable initial disability rating for scars on the Veteran's right low back. 7. Entitlement to a disability rating higher than 10 percent for gunshot wound residuals on the Veteran's right side. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1964 through July 1967, to include combat duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran's testimony was received during a September 2016 Board hearing. A transcript of that testimony is associated with the record. This matter was remanded by the Board in February 2017 for further development. That development has been completed and the matter returns to the Board for de novo review. The records show that the Veteran's claims file was lost while in VA possession and was subsequently reconstructed. Although reconstruction efforts have permitted the recovery of documents dated from 2002 through the present, it is apparent from review of the file that documents dated prior to 2002 remain missing and are unavailable for review. The United States Court of Appeals for Veterans Claims (Court) has held that in instances where a claimant's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Applying the principles of the Court's holding in that case, the Board recognizes its obligation in this case to carefully consider the weight of the evidence and to find in the Veteran's favor if the weight of evidence is in equipoise. As a final preliminary matter, the Board notes that additional VA treatment records were associated with the claims file following the RO's most recent Supplemental Statement of the Case in this matter on October 2017. The Board observes that the majority of those records are merely duplicative of evidence that was already of record at the time of the October 2017 SSOC. To the extent that portions of the newly associated records were not previously of record, those records do not contain any information or evidence that pertains to any of the issues on appeal. Accordingly, remanding this matter for those records to be reviewed in the first instance by the RO would constitute unnecessary delay. As such, the Board will proceed in adjudicating the issues. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has cervical spine degeneration that was not sustained during his active duty service, did not result from an injury or illness that occurred during his active duty service, and neither resulted from nor was aggravated by his service-connected disabilities to include his right side gunshot wound. 2. The Veteran has a radiculopathy in his right upper extremity that has resulted from non-service-related cervical spine degeneration. 3. The Veteran has lumbar spine degeneration that was not sustained during his active duty service, did not result from an injury or illness that occurred during his active duty service, and neither resulted from nor was aggravated by his service-connected disabilities to include his right side gunshot wound. 4. The Veteran does not have any gunshot wound residuals in his left side. 5. Manifestations associated with the gunshot wound on the Veteran's right side have included a scar on his posterior right trunk. 6. The residual scar associated with the Veteran's gunshot wound has been neither panful nor unstable and has encompassed an area of less than 144 square inches (929 square centimeters). 7. The gunshot wound residuals on the Veteran's right side has consisted of the aforementioned scar and a moderate injury to Muscle Group XX that is located in the Veteran's thoracic area. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability, to include osteoarthritis, to include as secondary to service-connected residuals associated with a gunshot wound to the Veteran's right side and as secondary to parachute jumps during service, are not met and may not be presumed as having been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a radiculopathy associated with a cervical spine disability, to include osteoarthritis, to include as being secondary to service-connected residuals of a gunshot wound to the Veteran's right side and secondary to parachute jumps during service, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for a lumbar spine disability, to include osteoarthritis, to include as secondary to service-connected residuals associated with a gunshot wound to the Veteran's right side and as secondary to parachute jumps during service, are not met and may not be presumed as having been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for residuals associated with a gunshot wound to the Veteran's left side are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for an effective date of December 1, 1994, and no earlier, for service connection for scars on the Veteran's right low back are met. 38 U.S.C.A. §§ 5101, 5107, 5110, 7111 (2012); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 20.1400, 20.1402, 20.1403, 20.1404 (2017). 6. The criteria for a compensable initial disability rating for scars on the Veteran's right low back are neither met nor approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7802 and 7805 (2017). 7. The criteria for a disability rating in excess of 10 percent for gunshot wound residuals on the Veteran's right side are neither met nor approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5320 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor his representative has raised any issues with VA's discharge of its duties 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 duty to assist argument). II. Service Connection Service connection is granted generally if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2014); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires an evidentiary showing of three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2017). Service connection for certain listed chronic diseases, such as arthritis, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service if such disability becomes manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b) (2017). Service connection may also be granted for a disease that is first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d) (2017). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a) (2017). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a 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 alternatively, whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b) (2014). A. Cervical Spine The Veteran asserts that he has a cervical spine disorder that was caused or aggravated by a gunshot wound sustained by him during service in Vietnam. The record shows that service connection is in effect for the Veteran for gunshot wound residuals. As an alternative theory, the Veteran also suggests the possibility that his current disorder resulted from impact and trauma from parachute jumps during service. The Veteran's service treatment records contain no reference to any subjective complaints by the Veteran of cervical spine-related symptoms, nor do they reflect any objective findings or treatment related to the Veteran's cervical spine. Indeed, an October 1960 pre-enlistment examination was grossly normal and the Veteran did not report any pre-service history of any neck or cervical spine problems. During his March 1967 separation examination, he again did not report any cervical spine problems. Again, a physical examination revealed no cervical spine abnormalities. During a January 1975 re-enlistment physical, the Veteran reported that he was in good health and had no complaints. In that regard, he expressly denied at that time having any history of cervical spine-related problems such as swollen or painful joints; broken bones; arthritis or rheumatism; bone, joint, or other deformity; neuritis; or, paralysis. The record shows that the Veteran began reporting occasional neck pain and right hand pain during VA treatment in 2002, more than 35 years after he was separated from active duty service. X-rays conducted during a January 2003 orthopedic referral revealed that the Veteran had moderate to severe degenerative changes in his cervical spine at C5-6 and corresponding neurological manifestations in his right upper extremity. Similar findings were noted in x-rays taken in March 2003. Records for subsequent VA treatment received by the Veteran through February 2018 document ongoing treatment for the Veteran's cervical spine disorder. Still, those records offer no opinions as to its origin or etiology. The record shows also that the Veteran has undergone multiple VA examinations of his cervical spine in June 2002, October 2014, April 2017, and October 2017. Each of those examinations confirmed the presence of degenerative arthritis in the Veteran's cervical spine, however, provide negative etiology opinions. During the June 2002 examination, the VA examiner opined simply that the Veteran's cervical spine disorder was unrelated to the Veteran's gunshot wound, but did not provide any explanation or rationale for that conclusion. In the October 2014 examination, the VA examiner opined that it is less likely than not that the Veteran's cervical spine disorder was incurred during service or was caused by an in-service injury or event. As rationale, the examiner explains that there is no documented continuum of care over the period from his separation from service through 2002 or other evidence of a relationship between the Veteran's disorder and active duty service. Although the examiner was asked to also offer an opinion as to whether the Veteran's cervical spine disorder was aggravated beyond its natural progression by his service-connected gunshot wound, the examiner failed to answer that question. Apparently misunderstanding the question, the examiner opined instead that the Veteran's cervical spine condition was not aggravated beyond its natural progression during service. During the April 2017 VA examination, the examiner opined that it is less likely than not that the Veteran's cervical spine disorder was proximately due to or the result of the Veteran's service-connected disability. As rationale, the examiner explained that there is no medical evidence that supports the theory that the Veteran's condition is secondary to his gunshot wound or parachute jumps. The examiner noted also that there was no evidence of any continuity of care over the period from his active duty service through the initial diagnosis and treatment in 2002. During the October 2017 VA examination, the VA examiner stated that there is no medical evidence in the record that the Veteran's cervical spine was related to his active duty service. Overall, the evidence shows that the Veteran did not sustain his cervical spine disorder during his active duty service. Indeed, the Veteran does not make any such contention. Also, the weight of the evidence shows that the Veteran's current cervical spine disorder was neither caused not aggravated by his service-connected gunshot wound residuals. In that regard, there are simply no objective medical findings or medical professional opinions in the record that suggest the existence of such a relationship. The evidence shows also that the Veteran's cervical spine disorder did not result from trauma from his in-service parachute jumps. As noted above, the service department records do not reference any in-service complaints by the Veteran of neck or cervical spine problems. Moreover, repeated physical examinations of the spine performed throughout the Veteran's service and in 1975, eight years after his separation from service, all showed normal cervical spine findings. Finally, VA examiners in April and October of 2017 opined that there is no evidence of an etiological relationship between the Veteran's cervical spine degeneration and his parachute jumps. Those opinions are supported by express rationale that is consistent with the other evidence in the record. Although the Board is sympathetic to the Veteran's expressed belief that some sort of etiological relationship exists between his cervical spine condition and his gunshot wound and/or active duty service, it nonetheless is unable to assign probative weight to the Veteran's assertions. To that end, the Board notes that the question of whether such relationships exist is a medically complex one that requires the application of learned medical principles to facts that are unique to the Veteran's history. Indeed, that history contains complicating factors such as the absence of any cervical spine-related symptoms during service, the apparent absence of any symptoms for many years after the Veteran's separation from service, and the Veteran's age. Given the same, the Veteran is not competent to offer a probative opinion as to whether an etiological relationship exists between his cervical spine disorder and his gunshot wound and/or other events during his active duty service. The weight of the evidence shows that the Veteran's cervical spine disorder neither resulted from nor was aggravated by his service-connected gunshot wound, and also, that the cervical spine condition was neither sustained during his active duty service nor resulted from any other injury or event that occurred during his active duty service. As such, the Veteran is not entitled to service connection for a cervical spine disability, to include osteoarthritis, to include as secondary to service-connected residuals associated with a gunshot wound to the Veteran's right side and as secondary to parachute jumps during service. B. Radiculopathies Associated with Cervical Spine Disorder The Veteran asserts that he has radiculopathies in his upper extremities that have resulted from his cervical spine disorder. Under the apparent assumption that service connection is warranted for his cervical spine disorder, he argues that he is also entitled to service connection for those radiculopathies on a secondary basis. Given the Board's denial of the Veteran's claim for service connection for a cervical spine disorder, service connection for the radiculopathies in the Veteran's upper extremities cannot be granted on a secondary basis pursuant to 38 C.F.R. § 3.310. Although the Board is compelled to also consider whether service connection for the Veteran's radiculopathies might be warranted on a direct basis under 38 C.F.R. § 3.303, the Board concludes also that service connection on that basis is also not warranted by the evidence. Service treatment records are also silent for any subjective complaints by the Veteran of any radicular symptoms in his upper extremities. Also, the records make no reference to any neurological findings in the upper extremities during any treatment or during the Veteran's in-service physical examinations. Again, a 1975 re-enlistment examination revealed no neurological abnormalities. Moreover, the Veteran expressly denied having any neurological problems during that examination. As noted above, the Veteran began reporting neck pain and associated right hand pain during VA treatment in 2002. Although neurological manifestations in the Veteran's right hand and upper extremity were diagnosed at that time, attending VA physicians opined that those manifestations were secondary to the Veteran's cervical spine degeneration. Records for subsequent VA treatment through February 2018 document ongoing treatment for neurological manifestations in the Veteran's right upper extremity. Nonetheless, those records echo the continuing opinion that those neurological problems were due to the Veteran's cervical spine disorder. Indeed, those opinions are supported by repeated radiological studies, including cervical spine x-rays conducted in January and September of 2003, an EMG study conducted in April 2010, and nerve conduction studies performed in May 2014, all of which demonstrated findings consistent with C6 and C7 radiculopathies. The same etiology opinion was rendered during a June 2002 VA examination. Notably, the Veteran does not make any express assertion that the radiculopathies in his upper extremities were sustained during his active duty service or that they are related in a direct manner to any in-service injuries or events other than his service-connected gunshot wound. Under similar analysis as that undertaken above, the Board does not assign probative weight to the Veteran's assertions. The question of whether the Veteran's radiculopathies are related in some way to his gunshot wounds is medically complex and not susceptible to mere lay observation. Indeed, the Veteran's assertions in that regard are outweighed by overwhelming objective and radiological evidence to the contrary. The weight of the evidence shows that the radiculopathies in the Veteran's upper extremities neither resulted from nor was aggravated by his service-connected gunshot wound, and also, that they were neither sustained during his active duty service nor resulted from any other injury or event that occurred during his active duty service. As such, the Veteran is not entitled to service connection for a radiculopathy. C. Lumbar Spine The Veteran asserts also that he has a lumbar spine disorder that is secondary to his service-connected gunshot wound, or alternatively, resulted from trauma during in-service parachute jumps. In his Board hearing testimony, he stated that he began experiencing back problems three or four years after separating from service. During his October 1960 enlistment examination, the Veteran expressly denied having any pre-service history of back problems. An examination of his spine performed at that time was normal. During his March 1967 separation examination, however, he complained of occasional back pain that he believed was a residual symptom associated with his gunshot wound. Thoracolumbar spine x-rays that were taken at that time did show the presence of retained metallic fragments from the gunshot wound, however, showed no evidence of any bony abnormalities. As noted already, a January 1975 enlistment examination report reflects that the Veteran was reporting that he was in good health and that he was having no complaints. Once again, a physical examination at that time revealed no evidence of any abnormalities in the Veteran's spine. Post-service treatment records show that the Veteran sought initial treatment related to his back in January 2003. A physical examination conducted at that time revealed no evidence of tenderness. X-rays taken in January 2006 revealed lumbar spine degenerative joint disease. Those findings were confirmed in a February 2006 MRI study. Records for subsequent VA treatment through February 2018 document ongoing complaints of back pain. Notably, an August 2014 note from the Veteran's treating VA physician expresses the opinion that that it is less likely than not that the Veteran's lumbar spine degenerative joint disease is due to his in-service gunshot wound. In that regard, the physician observed that the described injury and sequelae do not cause excess wear and tear on the lumbar spine. VA examinations of the Veteran's thoracolumbar spine conducted in June 2010, October 2014, April 2017, and October 2017 document radiologically confirmed degenerative thoracolumbar arthritis. The June 2010 VA examiner opined that it is less likely than not that the Veteran's osteoarthritis was related to any residuals associated with the Veteran's gunshot wound. however, provided no rationale. Once again, though asked to provide an opinion as to whether the Veteran's thoracolumbar spine arthritis was aggravated by his service-connected gunshot wound, the October 2014 examiner opined instead that the Veteran's back condition was not aggravated by his active duty service. The April 2017 VA examiner expressed that it is less likely than not that the Veteran's lumbar spine disorder was proximately due to or the result of the Veteran's service-connected disability or in-service parachute jumps. As rationale, the examiner explained that there is no medical evidence in the record that supports the theory that the Veteran's condition is secondary to his gunshot wound or jumps. The October 2017 VA examiner concurred with that opinion. Under essentially the same analysis as that undertaken by the Board in relation to the Veteran's cervical spine claim, the Board concludes that the Veteran is not entitled to service connection for a lumbar spine disorder. Of note, the Veteran does not assert that his back problems began during his period of active duty service. Subject to the same, there is simply no evidence of any objective medical findings or medical professional opinions that support his theory that his lumbar spine disorder. diagnosed initially in 2003, is related in any way to his in-service parachute jumps or his service-connected gunshot wound residuals. Again, the Board is mindful of the Veteran's earnest belief that his current lumbar spine problems are related in some way to his active duty service and/or gunshot wound residuals. As in the case of his cervical spine and radiculopathy disorders, however, the Veteran is not competent to provide a probative opinion as to the question of what, if any, relationship exists between his thoracolumbar spine disorder and either his active duty service or his gunshot wound residuals. As such, the Board does not assign probative weight to his assertions, but rather, is persuaded by the other evidence in the record. The weight of the evidence shows that the Veteran's thoracolumbar spine disorder neither resulted from nor was aggravated by his service-connected gunshot wound, and also, that the cervical spine condition was neither sustained during his active duty service nor resulted from any other injury or event that occurred during his active duty service. As such, the Veteran is not entitled to service connection for a lumbar spine disability, to include osteoarthritis, to include as secondary to service-connected residuals associated with a gunshot wound to the Veteran's right side and as secondary to parachute jumps during service. D. Residuals of Gunshot Wound on the Veteran's Left Side The Veteran asserts entitlement to service connection for residuals associated with a gunshot wound on his left side. In a July 2014 statement, he states that he was wounded twice during service in Vietnam. As mentioned above, service connection is in effect for the Veteran for residuals associated with a gunshot wound sustained to the right of his thoracolumbar spine. Although repeated VA examinations of the Veteran's gunshot wound residuals conducted in October 2014, April 2017, September 2017, and October 2017 revealed findings consistent with the presence of a single entry wound on the Veteran's right side, none of those examinations mention any findings that would be consistent with a second gunshot wound. Similarly, the post-service VA treatment records report no findings that would be consistent with a gunshot wound on the Veteran's left side. Indeed, the service department records in the file reflect no such in-service injury. In the absence of evidence showing that the Veteran sustained a gunshot wound on his left side, much less, the existence of a current disability associated with such a wound, the basic criteria for service connection for a gunshot wound to the Veteran's left side are not met. To that extent also, this appeal is denied. III. Earlier Effective Date for Service Connection for Scars on the Veteran's Low Back Service connection for residuals associated with a gunshot wound on the Veteran's posterior right chest wall, mid-dorsal spine area, was granted to the Veteran, effective from December 1, 1994. Service connection for a scar located on the Veteran's right low back, also residual to the Veteran's gunshot wound, was granted effective from January 22, 2009. The Veteran argues that the effective date for service connection for the scar should be fixed to the earlier date of December 1, 1994, on which service connection for residuals associated with the gunshot wound first became effective. The general rule regarding the assignment of an effective date for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110 (a) (2012); see 38 C.F.R. § 3.400 (2017) (to the same effect). An exception to the general rule applies if an application for benefits is received within one year from the date of a veteran's discharge or release from active service, and an award is made on the basis of that application. Only in that limited situation, the effective date of the award is made retroactive to the day following the date of discharge from service. 38 U.S.C.A. § 5110 (b)(1) (West 2014); 38 C.F.R. § 3.400 (b)(2) (2016). Otherwise, the effective date will be the later of the date of receipt of claim or the date on which entitlement arose. 38 U.S.C.A. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2) (2017). The Veteran's March 1967 separation examination report notes the presence of an "[o]perational scar" located on the Veteran's back. His January 1975 re-enlistment examination report does not note the presence of a scar specifically, but does note the presence of a bullet wound in the area of the Veteran's spine. As mentioned in the introduction, the Veteran's claims file is missing documents that are dated earlier than May 2002. Still, the Board observes that a June 2002 VA examination noted that the Veteran had an irregular scar at the site of the bullet wound entry that measured 2.0 centimeters by 1.5 centimeters. In conjunction with the same, an April 2004 rating decision denying an apparent claim by the Veteran for a higher disability rating for his gunshot wound residuals acknowledges the presence of the scar. Still, the RO did not grant service connection for the residual scar on the basis that the scar was neither painful nor affected any joint function. Subsequent VA examinations conducted in August 2009, April 2010, October 2014, April 2017, September 2017, and October 2017 note the continued presence of the Veteran's residual gunshot wound scar. Given the nature of a gunshot wound, the residuals associated with the Veteran's gunshot wound have likely always included the scar noted in the June 2002 VA examination. Indeed, notations regarding a scar made in the Veteran's separation examination and 1975 re-enlistment examination would appear to be consistent with that conclusion. Although the Board understands that the RO declined in its April 2004 rating decision to assign a separate disability rating for the Veteran's scar because the scar was neither painful nor productive of functional loss, the Board is of the opinion that considerations of such symptoms and impairment are relevant for rating purposes only. Here, where the evidence establishes that the Veteran's scar has always been among the residuals associated with his gunshot wound, service connection for the scar would have been warranted at the time that he filed his initial service connection claim, presumably on December 1, 1994. Given the foregoing, the Veteran is entitled to an earlier effective date of December 1, 1994 for service connection for residual scars located on his right low back. To that extent, this appeal is granted. IV. Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities and are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two disability ratings applies, the higher disability 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 (2017). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the disability rating being appealed is the initial disability rating assigned with an original grant of service connection, the entire appeal period must be considered. Different disability ratings may be assigned for separate periods of time depending on the facts shown in the evidence, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Again, staged ratings may be assigned as warranted, based upon the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3 (2017). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Scar, Right Low Back Service connection for scars on the Veteran's right low back was granted in a June 2010 rating decision, effective from January 22, 2009, with a non-compensable initial disability rating. The Veteran asserts entitlement to a compensable initial disability rating. The scar has been rated in accordance with the criteria under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. Post-service treatment records do not reflect any treatment related to the Veteran's scar. Repeated VA examinations conducted in April 2010, October 2014, April 2017, September 2017, and October 2017 all revealed that the scar was linear in shape, neither painful nor unstable, and not productive of any functional impairment. Measurements of the scar varied from examination to examination and were as follow: 3.0 inches by 0.25 inch (0.75 square inches) during the April 2010 examination; 4.0 centimeters long during the October 2014 examination; 5.0 centimeters by 1.0 centimeters (5.0 square centimeters) during the April 2017 examination; 4.0 centimeters by 0.1 centimeters (.40 square centimeters) during the September 2017 examination; and, 3.0 centimeters in length during the October 2017 examination. DC 7805 applies to disabilities caused by scars generally, and directs that those disabilities are to be rated in accordance with DCs 7800, 7801, 7802, and 7804. DC 7800 is to be applied for scars that are located on the head, face, or neck and as such is not applicable. DC 7801 concerns disabilities due to scars that are not of the head, face, or neck; however, contemplates scars that are deep and non-linear. As discussed, the scar at issue does not have any of those characteristics. Hence, DC 7801 is also not applicable to this case. Similarly, DC 7804 contemplates scars that are unstable or painful which are also not characteristics associated with the scar at issue. Those criteria define unstable scars as those that involve frequent loss of skin covering over the scar. Where the scar in this case does not have those characteristics either, DC 7804 also does not apply to this case. DC 7802 contemplates scars, other than of the head, face, or neck, that are superficial and do not cause limited motion. Under those criteria, a maximum 10 percent disability rating is assigned for such scars that encompass an area of 144 square inches (929 square centimeters) or more. Here, the Veteran's scar does not meet the criteria for a compensable disability rating under DC 7802. The evidence does not support the assignment of a compensable initial disability rating for the residual scars on the Veteran's back. To that extent also, this appeal is denied. B. Gunshot Wound Residuals In his January 2009 claim, the Veteran asserts entitlement to a disability rating higher than 10 percent for gunshot wound residuals on his right side. Muscle injuries are evaluated pursuant to 38 C.F.R. §§ 4.55, 4.56, and 4.73 (2017). For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in five anatomical regions. 38 C.F.R. § 4.55 (b) (2017). The specific bodily functions of each group are listed in 38 C.F.R. § 4.73. 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) (2017). Under DCs 5301 to 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. The type of disability associated with a slight muscle disability is a simple wound of muscle without debridement or infection. Objective findings for such injuries should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56 (d)(1) (2017). The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2) (2017). The type of injury associated with a moderately severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3) (2017). The type of injury associated with a severe disability of muscles is a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Objective findings of a severe disability would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, a severe injury would also show x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4) (2017). The Board notes that section 4.56(d), which sets forth classification of muscle injuries as slight, moderate, moderately severe or severe, employs a totality-of-the-circumstances test, and no single factor is controlling in determining the rating for a muscle injury. See Tropf v. Nicholson, 20 Vet. App. 317, 325 (2006). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which a claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's gunshot wound residuals have been rated pursuant to the criteria under DC 5320. Those criteria are for rating disabilities that involve Muscle Group XX, which serves the function of providing postural support for the body and extension and lateral movements of the spine. The relevant muscles are the sacrospinalis (erector spinae and its prolongations in thoracic and cervical regions). The criteria provide different rating scheduled depending on the location of the muscle injury. For disabilities of the cervical and thoracic region, a non-compensable disability rating is warranted for slight disability. A 10 percent disability rating is warranted for moderate disability. A 20 percent disability rating is warranted for moderately severe disability. A 40 percent disability rating is warranted for severe disability. For disabilities that involve the lumbar region, a non-compensable disability rating is assigned for a slight disability. A 20 percent disability rating is warranted for a moderate disability. A 40 percent disability rating is assigned for a moderately severe disability. A maximum schedular 60 percent disability rating is assigned for a severe disability. Notably, the Veteran's gunshot wound residuals have been rated under DC 5320 as an injury located in the Veteran's cervical and thoracic region. In his Board hearing testimony, the Veteran argues that his gunshot wound and associated residuals should be rated based on location in his lumbar area. He elaborated that the residual scar associated with his gunshot wound was actually located at his waistline in his lumbar spine region. The records for post-service VA treatment received by the Veteran during the appeal period at issue indicate that the Veteran has not sought active treatment for his gunshot wound residuals. During an April 2010 VA examination, the Veteran reported that he was having discomfort in his right scapula, particularly while raising his arms. He also described having discomfort in his right side at the costal-cartilage junction when he took deep breaths. The examiner noted that the muscles that were involved in the Veteran's gunshot injury were the latissimus dorsi and erector spinae on the right side of the Veteran's body. The examiner noted also that the Veteran's wound did not involve any vascular or nerve injury. On examination, the examiner noted the presence of only one entrance wound. Muscle strength in the latissimus dorsi muscle was full and there was no evidence of a muscle herniation. Full and normal function was also observed in the erector spinae muscle. X-rays showed the presence of retained metal fragments at the right side of the posterior chest wall. There was no evidence of bone or tendon injury and the heart and lungs appeared to be normal. The examiner diagnosed a remote bullet wound with injuries to the right latissimus dorsi and right erector spinae muscle with retained metal fragments and opined that the Veteran remained capable of performing all activities of daily living. In an April 2017 VA examination, the examiner noted that the Veteran's gunshot wound was penetrating in nature and involved Muscle Group XX in the thoracic spine area. Lowered threshold of fatigue was reported and apparently observed in the muscle group, but no other abnormalities were noted. In terms of function, the examiner opined that the Veteran's muscle injury was not impacting his activities of daily living or his ability to work. Essentially identical findings were noted during a September 2017 VA examination. Interestingly, during a re-examination of the Veteran's gunshot wound residuals in October 2017, the VA examiner characterized the wound as involving Muscle Group XX at the lumbar spine region as opposed to the thoracic/cervical region. The evidence shows that the Veteran's gunshot wound residuals have included residual scarring located at the entrance wound (discussed above) and muscle injuries to Muscle Group XX (the latissimus dorsi and erector spinae muscles) that has been characterized by retention of metal fragments in the muscle tissue and lowered threshold of fatigue. Repeated examinations did not reveal other objective findings, including those contemplated in the regulations for moderately severe or severe muscle injuries. Overall, the evidence shows a moderate muscle injury involving Muscle Group XX. The evidence presents conflicting information as to the location of the Veteran's injury. In that regard, the April 2010, April 2017, and September 2017 VA examiners characterize the Veteran's muscle injury as being located in the thoracic area. Still, the Veteran has described that the scar marking his entrance wound is located in his low back in the area of his waistline. Indeed, the October 2017 VA examiner characterized the Veteran's disability as involving the region of the lumbar spine. Despite the Veteran's testimony regarding the location of his wound and the characterization given by the October 2017 examiner, the Veteran's separation examination report notes that x-rays taken at that time showed metallic densities that were overlying the lower thoracic spine. Also, a January 1975 re-enlistment examination notes that residuals associated with the Veteran's gunshot wound were located just to the right of the thoracic spine at T11. In sum, the other evidence in the record supports the conclusions given by the April 2010, April 2017, and September 2017 VA examiners; namely, that the Veteran's gunshot wound residuals are located in the thoracic region. For that reason, the Board is persuaded by those examiners' opinions and concludes that the Veteran's muscle injuries involve the thoracic area. Overall, the evidence shows that the Veteran's gunshot wound residuals consist of a moderate injury to Muscle Group XX that is located in the Veteran's thoracic region. The criteria for a disability rating higher than 10 percent for the gunshot wound residuals on the Veteran's right side are not met. To that extent also, this appeal is denied. ORDER Service connection for a cervical spine disability, to include osteoarthritis, to include as secondary to service-connected residuals associated with a gunshot wound to the Veteran's right side and as secondary to parachute jumps during service, is denied. Service connection for a radiculopathy associated with a cervical spine disability, to include osteoarthritis, to include as being secondary to service-connected residuals of a gunshot wound to the Veteran's right side and secondary to parachute jumps during service, is denied. Service connection for a lumbar spine disability, to include osteoarthritis, to include as being secondary to service-connected residuals of a gunshot wound to the Veteran's right side and secondary to parachute jumps during service, is denied. Service connection for residuals associated with a gunshot wound to the Veteran's left side is denied. An earlier effective date of December 1, 1994 for service connection for scars on the right low back is granted. A compensable initial disability rating for scars on the right low back is denied. A disability rating higher than 10 percent for gunshot wound residuals on the Veteran's right side is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs