Citation Nr: 20046053 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 15-41 955 DATE: July 9, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for residuals from gunshot wound to the neck is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s symptoms from residuals from gunshot wound to the neck reflect a severe disability of the respective muscle groups (XXII and XXIII), to include an inability to keep up with work conditions. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for residuals from gunshot wound to the neck have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.55, 4.56, 4.73, Diagnostic Code 5322-5323 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to December 1970. In December 2019, the Board remanded the claim for further development. There was substantial compliance with the Board’s remand directives to decide the claim on appeal at the present time. See Stegall v. West, 11 Vet. App. 268 (1998). In the April 2019 Board decision, it referred a claim for service connection for arthritis of the neck (as secondary to service-connected residuals of gunshot wound to the neck) to the Agency of Original Jurisdiction (AOJ) based on a VA Form 21-4138, Statement in Support of Claim, that was received on June 15, 2012. However, a review of the record does not show that any action has been taken. The AOJ is asked to take action on the June 15, 2012, submission from the Veteran, where he raised the issue of entitlement to service connection for arthritis of the neck, to include as secondary to service-connected residuals of gunshot wound to the neck. Entitlement to a disability rating in excess of 20 percent for residuals from gunshot wound to the neck. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2018). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Veteran contends that his residuals of gunshot wound to the neck, also referred to as injury to muscle group XXIII, is worse than the 20 percent disability rating currently assigned. The Veteran has asserted that he has additional loss of mobility in the neck and arthritis associated with the neck injury, which has “migrated into his shoulders.” See February 2013 statement and November 2013 notice of disagreement. Specifically, the Veteran indicated that the doctor who performed surgery on his right shoulder, Dr. W.A.S., told him that there was “considerable arthritis of the area of the wound and the upper shoulder” after performing tests at the time of surgery, which led him to file a claim for an increased disability rating of the residuals of gunshot wound disability. See June 2014 statement and April 2015 statement. The Veteran explained that at the April 2015 VA examination, the examining doctor told him that he was not looking at the arthritis but rather only the soft tissue damage. The Veteran explained that this was not the issue, and that over the years, he had done neck and shoulder exercises to keep in shape and did not have much issue with muscle and that it had always been the arthritis that he could not overcome. He emphasized that arthritis is the issue, it was continuing to cause more loss of mobility, and to disregard the arthritis is to ignore the root cause of the problem. Id. As noted above, a claim for service connection for arthritis of the neck (as secondary to service-connected residuals of gunshot wound to the neck) had been previously referred to the AOJ in the April 2019 Board decision, however, has not yet been adjudicated. The Board will focus on the muscle injury in the Veteran’s increased rating claim herein. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. 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). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. Here, the April 2015 VA examination indicated that the muscle groups affected were the left XXII and XXIII muscle groups. Therefore, the Board will consider the Veteran’s service-connected for residuals from gunshot wound to the neck under 38 C.F.R. § 4.73a, DC 5322, applicable to Muscle Group XXII, and DC 5323, applicable to Muscle Group XXIII. Under both DC 5322 and 5323, a slight disability is rated as noncompensable, a moderate disability is rated 10 percent, a moderately severe disability is rated 20 percent, and a severe disability is rated 30 percent. 38 C.F.R. § 4.73, DCs 5322 and 5323. The Veteran’s residuals from gunshot wound to the neck is rated under DC 5322-5323. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. 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). 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. 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 (2018). 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). 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. 38 C.F.R. § 4.56(d). 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. Id. 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 complaint 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. Id. 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 complaint 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. Id. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2018). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2018). Upon review of all the evidence of record, the Board finds that, for the entire period on appeal, a 20 percent rating for moderately severe impairment of muscle groups XXII and XXIII is warranted under DC 5322-5323, but no higher. The Veteran has reported that the “biggest issue” with his neck is the “inability to turn from side to side.” He explained that he was in sales and driving was a large part of his drive, to include a vast majority of it, driving short distances from one parking lot to another. He reported that backing in and out of spaces requires that he physically turn his entire torso to see behind him and then twist it in the other direction for a view of the other side. See February 2013 statement. The Veteran has also reported that he needed help getting into a coat or jacket and cannot raise his left arm over his head due to surgery performed on that shoulder. See November 2013 notice of disagreement. During the February 2013 VA examination, the Veteran reported daily flare-ups of moderate pain that lasted all day. While localized tenderness or pain to palpation for the joints/ soft tissue of the cervical spine was noted, the Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing revealed normal strength, a reflex examination revealed normal reflexes, sensory examination was normal, and the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. Functional impacts of the Veteran’s cervical spine disability were that the Veteran used his car at work and poor neck mobility was a problem, to include when he looked at the [car] mirrors, he had to “move his trunk en bloque.” A September 2013 VA examination report indicates an injury to the muscle groups XXII and XXIII, muscles of the front of the neck and of the side and back of the neck, on the left side. It was noted that the muscle injuries affected muscle substance or function with some loss of muscle substance and slight loss of the left strap muscles but of no cosmetic or functional apparent effect, specifically that one would have to look hard to see any surface scar or deficit of functional use except that over time, not related to the muscle damage, the Veteran has had the onset of osteoarthritis of the cervical spine with some degenerative disc disease (DDD)/degenerative joint disease (DJD) without radiculitis. The examiner explained that there was no effect of the service-connected injury on the natural progression of what is most likely due to aging, genetics and other causes than the service-connected injury. The Veteran’s neck muscle injury did not sedentary work and while it was noted that he was only able to perform physical work to a light level only per the D.O.T. (Dictionary of Occupational Terminology), this was due to the non-service connected osteoarthritis and DDD/DJD mentioned above. Following VA examination in April 2015, the examiner found that the Veteran’s muscle injury had affected muscle substance or function with some loss of muscle substance and a slight loss of the left strap muscles but not cosmetic. There were no cardinal signs and symptoms of muscle disability, muscle strength testing was normal, and the Veteran did not have muscle atrophy. The examiner found that the Veteran’s muscle injury did not impact his ability with sedentary or physical work and that the physical work was limited to a “light level” only per D.O.T. due to the Veteran’s non-service connected osteoarthritis and DDD/DJD but not due to the service-connected muscle injury. It was noted that the Veteran was still working at the time for a printing company and drove a lot without restrictions. Specifically, the examiner found that findings had been unchanged since the September 2013 examination. The Veteran has consistently reported symptoms of difficulty turning his neck. Examinations performed during the appeal period do not reflect a severe disability of the muscles to warrant an increased 30 percent rating for the service-connected residuals of gunshot wound to the neck. For example, muscle strength testing, reflex examinations, and sensory examinations were normal in the examinations detailed above. Examiners documented that the Veteran had no muscle atrophy or radicular pain or other signs or symptoms due to radiculopathy. The Veteran has asserted that his neck arthritis is the cause of most of his problems, which has been reiterated by the VA examiners that specifically found that the impact of his neck on physical work had been due to osteoarthritis and DDD/DJD and not to the service-connected residuals of gunshot wound to the neck (muscle injury). Further, November 2016 VA medical records indicate that the Veteran continued to work at the printing business and that he was able to fix up a small vacation house with his wife on the weekends. These facts are evidence against a severe disability of the relevant muscles to warrant a higher rating. The Board finds that the Veteran’s symptoms from the service-connected residuals of gunshot wound to the neck muscle injury have not shown to result in more than a moderately severe impairment in performing physical activities of employment. The preponderance of the evidence is against findings of signs or symptoms of weakness, impairment of coordination, or uncertainty of movement. Furthermore, while there was some impairment in the Veteran’s ability to keep up with work requirements due to the muscle conditions, the preponderance of the evidence is against a finding that he was unable to keep up with work conditions due to the muscle conditions. Finally, the preponderance of the evidence is against the Veteran’s symptoms showing signs of severe muscle disability as described in 38 C.F.R. § 4.56(d). For these reasons, the Board finds that the Veteran’s residuals from gunshot wound to the neck is no more than moderately severe and an increased 30 percent rating for a severe muscle disability is not warranted. Thus, the benefit-of-the-doubt rule does not apply, and entitlement to a disability rating in excess of 20 percent residuals from gunshot wound to the neck is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, Associate Counsel 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.