Citation Nr: 20021463 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-28 751A DATE: March 25, 2020 ORDER A rating in excess of 10 percent for residuals of a gunshot wound to the left sterno-mastoid muscle affecting Muscle Group XXII is denied. A separate rating of 10 percent, but no higher, for residuals of a gunshot wound to the left trapezius affecting Muscle Group I is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for skin disorder, to include jungle rot of the feet and a body rash, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s residuals of a gunshot wound to the left sterno-mastoid muscle do not result in more than a moderate injury to Muscle Group XXII. 2. For the entire appeal period, the Veteran’s residuals of a gunshot wound to the left trapezius do not result in more than a moderate injury to Muscle Group I. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a gunshot wound to the left sterno-mastoid muscle affecting Muscle Group XXII have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5322. 2. The criteria for a separate rating of 10 percent, but no higher, for residuals of a gunshot wound to the left trapezius affecting Muscle Group I have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. He is the recipient of numerous awards and decorations, to include the Purple Heart and Combat Infantryman’s Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound to the left sterno-mastoid muscle and trapezius. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Under 38 C.F.R. § 4.73, Diagnostic Codes 5301 to 5323 prescribe the evaluation of disabilities manifested by muscle injuries based upon the classifications of slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d)(1)-(4). The corresponding level of severity of a service-connected muscle injury is determined to a significant extent by the presence or absence of cardinal signs and symptoms of muscle disability, which consist of loss of power, lowered threshold of fatigue, weakness, pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe as follows: (1) Slight disability of muscles--(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles--(i) Type of injury. 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. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles--(i) Type of injury. 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. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. 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, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d). The appeal period before the Board begins on June 22, 2011, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this regard, for the entire appeal period, the Veteran’s residuals of a gunshot wound to the left sterno-mastoid muscle and trapezius has been evaluated as 10 percent disabling pursuant to Diagnostic Code 5322, which pertains to injuries affecting Muscle Group XXII. 38 C.F.R. § 4.73. Such muscle group affects rotary and forward movements of the head, respiration, and deglutition, and includes muscles of the front of the neck (lateral, supra-, and infrahyoid group): (1) trapezius I (clavicular insertion); (2) sternocleidomastoid; (3) the “hyoid” muscles; (4) sternothyroid); and (5) digastric. Under Diagnostic Code 5322, a noncompensable rating is warranted for a slight disability, a 10 percent rating is warranted for a moderate disability, a 20 percent rating is warranted for a moderately severe disability, and a 30 percent rating is warranted for a severe disability. Further, as will be discussed below, the evidence of record indicates that the Veteran’s residuals of a gunshot wound to the left sterno-mastoid muscle and trapezius also affects Muscle Group I. In this regard, such muscle group affects upward rotation of scapula and elevation of arm above shoulder level, and includes (1) trapezius; (2) levator scapulae; and (3) serratus magnus. Under Diagnostic Code 5301, ratings are provided for the dominant and non-dominant upper extremity. In this regard, the record reflects that the Veteran is right-handed and, thus, evaluations for the non-dominant upper extremity are applicable. As such, a noncompensable rating is warranted for a slight disability, a 10 percent rating is warranted for a moderate disability, a 20 percent rating is warranted for a moderately severe disability, and a 30 percent rating is warranted for a severe disability The Veteran’s service treatment records reflect that he was hospitalized for 4 days in January 1969 after being shot by a sniper. In this regard, it was observed that he had a penetrating gunshot wound of the left sternocleidomastoid muscle and trapezius, without nerve or artery involvement. Following further recuperation for another 10 days, it was noted that, while the Veteran complained of minimal pain on palpation, he had full range of motion and no residuals of his gunshot wound. Consequently, he was determined to be fully healed and ready to return to duty. Nonetheless, he reported ongoing pain and stiffness in the neck and left shoulder later that month. Further, in March 1969, the Veteran again complained of stiffness in the neck and dull pain in the left shoulder, especially after performing a lifting motion. While an initial impression suggested nerve regeneration in wound area, upon examination, he had full range of motion of the neck and shoulder and all muscles were strong. Additionally, upon orthopedic consultation, it was noted that the physician could not find a reason for the Veteran’s reported pain and loss of function. The remainder of the Veteran’s service treatment records, to include his March 1970 separation examination, were negative for any complaints, treatment, or diagnosis referable to his residuals of his gunshot wound. In a January 2012 statement, the Veteran reported that his gunshot residuals resulted in pain in the neck and shoulder area, difficulty lifting heavy items overhead, shoulder weakness following strenuous activity, and inflammation in the upper shoulder after lifting his arm overhead. At a February 2012 VA examination, the examiner noted that the Veteran sustained a gunshot wound to the left neck area. It was observed that he had a penetrating muscle injury, due to a gunshot while serving in Vietnam, and, at such time, no nerve or vessel damage was noted. The examiner noted that the Veteran had not received any treatment for the condition. Upon examination, the examiner observed that the Veteran’s gunshot wound affected Muscle Group I in addition to Muscle Group XXII. It was noted that he had a minimal scar, described as entrance and (if present) exit scars indicating track of missile through one or more muscle groups. There was no known fascial defects or evidence of fascial defects associated with the Veteran’s muscle injuries, but there was some loss of muscle substance. No cardinal signs or symptoms of muscle disabilities were present. Muscle strength testing of the upper left extremity, to include shoulder abduction, was normal at 5/5. There was no muscle atrophy. The Veteran had mild limitation of rotation of his neck to the right to 70 degrees instead of 80 degrees without pain. There were no retained metallic fragments. The examiner found that the Veteran’s muscle injuries did not impact his ability to work, such as resulting in an inability to keep up with work requirements due to such injuries. VA treatment records dated in January 2018 reflect the Veteran’s report of neck pain at night after working out. In his June 2017 substantive appeal, the Veteran reported his residuals of a gunshot wound caused pain and problems with use when lifting, working, or sleeping and argued that such difficulties resulted in severe, rather than moderate, impairment. VA treatment records dated in January 2018 reflect the Veteran’s report that he had occasional left shoulder and arm pain, which worsened with exercise. At an August 2019 VA muscle injuries examination, it was noted that the Veteran had a penetrating muscle injury as a result of his in-service gunshot wound. At such time, he reported pain in the neck that went down the left arm. The examiner noted that the Veteran’s gunshot wound affected Muscle Group I rather than Muscle Group XXII. It was noted that he had entrance and (if present) exit scars indicating track of missile through one or more muscle groups, which was described as two 0.5 cm by 0.5 cm scars located on the left anterior trapezius and left upper back. There was no known fascial defects or evidence of fascial defects associated with the Veteran’s muscle injuries, and such did not affect muscle substance or function. With respect to the cardinal signs and symptoms of muscle injuries, it was noted that the Veteran experienced consistent weakness and lowered threshold of fatigue of Muscle Group I. Muscle strength testing of the upper left extremity, to include shoulder abduction, was normal at 5/5. There was no muscle atrophy. It was noted that the Veteran’s gunshot wound residuals impacted his ability to work in that he could not perform certain duties due to pain, weakness, and fatigue in the left upper shoulder region and, as such, was assigned to an administrative position. At an August 2019 VA shoulder and arm conditions examination, it was noted that the Veteran reported flare-ups as a result of excessive use and resulted in additional pain in the left shoulder. He also reported that his left side felt weaker than his right side. Upon examination, the Veteran had full range of motion, albeit with pain, of the left shoulder in all planes, to include following repetitive motion, repeated use over time, and flare-ups. There was mild localized tenderness or pain on palpation at the lower left posterior neck. Muscle strength testing of the left shoulder was normal at 5/5 and there was no muscle atrophy. The examiner noted that, because of slight weakness and difficulty lifting things, the Veteran was reassigned to an administrative position. As an initial matter, the Board notes that the Veteran’s residuals of a gunshot wound to the left sterno-mastoid muscle and trapezius affect both Muscle Group I and Muscle Group XXII, as determined by the February 2012 and August 2019 VA examiners. In this regard, VA regulations provide that, for rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 different anatomical regions, in which Muscle Group I is noted to affect the shoulder girdle and arm and Muscle Group XXII is noted to affect the torso and neck, which are 2 separate anatomical regions. 38 C.F.R. § 4.55(b). Such further provides that, for compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55(e). Further, for muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of § 4.25. 38 C.F.R. § 4.55(f). Consequently, the Board finds that, as the Veteran’s residuals of a gunshot wound affect the sterno-mastoid muscle, which is included in Muscle Group XXII and affects the function of the torso and neck (described as rotary and forward movements of the head, respiration, and deglutition) and the trapezius muscle, which is included in Muscle Group I and affects the function of the shoulder girdle and arm (described as upward rotation of scapula and elevation of arm above shoulder level), two Muscle Groups in separate anatomical regions are involved. In this regard, 38 C.F.R. § 4.55(f) provides that each muscle group injury shall be separately rated. In this regard, the Board finds that, for the entire appeal period, the Veteran’s residuals of a gunshot wound to the left sterno-mastoid muscle and trapezius does not result in more than a moderate injury to Muscle Group XXII and Muscle Group I, respectively. Thus, while a rating in excess of 10 percent is not warranted under Diagnostic Code 5322, a separate 10 percent rating, but no higher, is warranted under Diagnostic Code 5301. In this regard, the Board finds that the medical and lay evidence of record reflects that the Veteran has, at most, a moderate disability of both muscle groups. Specifically, his service treatment records reflect in-service treatment for the wound with hospitalization for 4 days and recuperation for 10 days, with complaints of pain and stiffness in the neck and left shoulder in the three months after the injury. However, such are negative for hospitalization for a prolonged period for treatment of wound or consistent complaints of cardinal signs and symptoms of muscle disability, to include evidence of an inability to keep up with work requirements. Furthermore, February 2012 and August 2019 VA examinations reflect entrance and (if present) exit scars indicating track of missile through one or more muscle groups, which was described as two 0.5 cm by 0.5 cm scars located on the left anterior trapezius and left upper back, but there was no known fascial defects or evidence of fascial defects. Additionally, while the February 2012 VA examination revealed some loss of muscle substance, none was noted at the August 2019 VA examination. Moreover, the entirety of the evidence of record is negative for indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Finally, with respect to Muscle Group XXII, neither examination revealed cardinal signs or symptoms of muscle disability; however, at the August 2019, it was noted that the Veteran experienced consistent weakness and lowered threshold of fatigue of Muscle Group I. The Board also notes that the Veteran has reported pain in the neck and shoulder area, difficulty lifting heavy items overhead, shoulder weakness following strenuous activity, and inflammation in the upper shoulder after lifting his arm overhead. Nonetheless, tests of strength and endurance compared with sound side do not demonstrate positive evidence of impairment as all muscle strength testing conducted during the appeal period is normal and no muscle atrophy is present. Thus, the Board finds that the type of injury, history and complaint, and objective findings associated with the Veteran’s Muscle Group XXII and Muscle Group I injuries approximates no more than a moderate muscle injury, which results in separate 10 percent ratings, but no higher, under Diagnostic Code 5322 and 5301, respectively. The Board further notes that, while the Veteran has scars associated with his muscle group injuries, such are asymptomatic and not of a size so as to warrant a separate compensable rating. Furthermore, while he has slight limitation of motion of the neck as demonstrated at the February 2012 VA examination, he has been separately service-connected for degenerative changes of the cervical spine, which is rated based on limitation of motion. In this regard, the Board further acknowledges the Veteran’s reports of pain radiating from his neck down his left arm, which is contemplated in the currently assigned rating for his radiculopathy of the left upper extremity. Moreover, the Veteran’s service treatment records indicate that there was no nerve or artery involvement. Consequently, additional separate ratings for the Veteran’s muscle group injuries is not warranted. In reaching such decision, the Board recognizes the Veteran’s sincerely held belief that his left sterno-mastoid muscle and trapezius symptomatology is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected residuals of a gunshot wound to the left sterno-mastoid muscle and trapezius; however, the Board finds that such symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Therefore, based on the foregoing, the Board finds that a rating in excess of 10 percent for residuals of a gunshot wound to the left sterno-mastoid muscle affecting Muscle Group XXII is not warranted. However, a separate rating of 10 percent, but no higher, for residuals of a gunshot wound to the left trapezius affecting Muscle Group I is warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against additional higher or separate ratings, the benefit of the doubt doctrine is not applicable in such regard and his increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for skin disorder, to include jungle rot of the feet and a body rash, to include as due to exposure to herbicide agents. The Veteran contends that, while serving in Vietnam as a light weapons infantryman, he was required to walk, stand, and lay in rice paddies over a long period of time with wet socks and boots, which resulted in a jungle rot of his feet and a body rash. In the alternative, he alleges that such is the result of his acknowledged in-service exposure to herbicide agents. The Veteran further reports that he has experienced ongoing skin symptomatology, to include discoloration of his feet and a rash on his back and chest, since such time. Therefore, he claims that service connection for a skin disorder is warranted. While the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a skin disorder, his reports of the circumstances surrounding the nature of his service in Vietnam is consistent with his military occupational specialty of a light weapons infantryman and his documented combat service. Additionally, he is competent to report ongoing skin symptomatology as such is readily observable by a lay person. Further, VA treatment records dated in March 1984 reflect a diagnosis of tinea versicolor. More recent records likewise show diagnoses of onychomycosis/tinea pedis and tinea versicolor. Consequently, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his skin disorder. The matter is REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed skin disorder. The record and a copy of this Remand must be made available to the examiner, and all indicated tests and studies should be accomplished. Thereafter, the examiner should address the following inquiries: (A) Identify all skin disorders that have been present at any time proximate to the Veteran’s June 2011 claim, even if such are asymptomatic or have resolved, to include onychomycosis/tinea pedis and tinea versicolor. (B) For each diagnosed skin disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include the circumstances surrounding his combat service in Vietnam and/or his acknowledged exposure to herbicide agents. In offering such opinion, the examiner should consider the Veteran’s reports regarding the onset of his skin symptomatology in service that have continued to the present time. Further, he or she is advised that the sole basis of a negative nexus opinion may not be that the Veteran’s service treatment records are negative for a skin disorder or that such is not included in VA’s lists of diseases acknowledged to be presumptively related to exposure to herbicide agents. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.