Citation Nr: 20052016 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 16-12 677 DATE: August 5, 2020 ORDER Entitlement to an initial rating greater than 10 percent for chest wall discomfort is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran’s chest wall discomfort was not due to 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. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for service-connected chest wall discomfort have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5321. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1974 to September 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board remanded these matters in April 2019 for additional development, which has been substantially completed. 1. Entitlement to an initial rating greater than 10 percent for chest wall discomfort is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran seeks an initial rating greater than 10 percent for his service-connected chest wall discomfort, which has been rated under 38 C.F.R. § 4.73, Diagnostic Code 5321, muscle injuries, Group XXI. Disabilities of the thoracic muscle group, muscles of respiration, are governed by Diagnostic Code 5321, which provides as follows: (1) a slight injury warrants a noncompensable rating; (2) a moderate injury warrants a 10 percent rating; and (3) a moderately severe or severe injury warrants a 20 percent rating. See 38 C.F.R. §§ 4.55(b), 4.73. For VA rating purposes, evaluation of a muscle disability requires consideration of its cardinal signs and symptoms, including loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. See 38 C.F.R. § 4.56(c). The finding of a slight muscle disability is warranted where the evidence of record indicates a simple muscle wound without debridement or infection, and where a medical history includes a service department record documenting a superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings for a slight muscle disability include a minimal scar, no evidence of a fascial defect, atrophy, or impaired tonus, no impairment of function, and no metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1) The finding of a moderate muscle disability is warranted where the evidence of record indicates 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, and where a medical history includes a service department record or other evidence of in-service treatment for the wound and documentation of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings for a moderate muscle disability 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). The finding of a moderately severe muscle disability is warranted where the evidence of record indicates 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, and where a medical history regarding this type of injury includes a service medical record or other evidence documenting prolonged hospitalization for treatment of a wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of an inability to keep up with work requirements. Objective findings for a moderately severe muscle disability 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). The finding of a severe muscle disability is warranted where the evidence of record indicates 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, and where a medical history regarding this type of injury includes a service department record or other evidence documenting hospitalization for a prolonged period for the treatment of such wound, record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of an inability to keep up with work requirements. Objective findings for a severe muscle disability include the following: (1) ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track; (2) palpation indicating loss of deep fascia or muscle substance, or soft flabby muscles in wound area; (3) muscles swelling and hardening abnormally in contraction; and (4) tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicating severe impairment of function. 38 C.F.R. § 4.56(d)(4). As stated above, the Veteran’s service-connected chest wall discomfort is currently evaluated under the criteria of Diagnostic Code 5321 as 10 percent disabling. The Veteran contends that his disability warrants an increased compensable evaluation based on his reports of chest pain, discomfort, and fatigue. In his July 2014 notice of disagreement, the Veteran reported that he had episodes of chest pain that were of the severity that required trips to the emergency room. He stated that the pain caused him to be unable to move any part of his upper body, neck, or head for fear of increasing the pain. On the March 2016 VA Form 9, the Veteran indicated that he had to take blood pressure pills related to his chest pain. In a February 2020 statement, he indicated that he had persistent pain in his chest especially when he tried to pick up or carry more than 25 pounds. He noted having shortness of breath on exertion and pain, nausea, and shortness of breath when bending over to tie his shoes. The Veteran had a VA examination in May 2014. The examiner indicated that the Veteran did not have a penetrating muscle injury, such as a gunshot or fragment wound. The examiner indicated that the Veteran had a non-penetrating muscle injury, most likely pleurisy and chest muscle or intercostal strain. The Veteran reported having yearly recurrent episodes since that time. The examiner specified that the Veteran had an injury to Muscle Group XXI with associated fatigue and pain that occurred occasionally. The examiner stated that the condition did not impact the Veteran’s ability to work. Private treatment records from Dr. A.M. show complaints and treatment for chest pain. The Veteran was referred for a stress test in April 2018 due to chest pain and discomfort. No chest pain was observed during the test. During an August 2018 VA examination, the Veteran reported having intermittent, moderate, aching, center chest wall pain. He stated that pain occurred with walking. He had a history of acid reflux and was not sure if it was affecting the chest wall discomfort. He denied having shortness of breath or other respiratory problems. The examiner noted past injury to Muscle Group XXI and that the Veteran occasionally had associated fatigue and pain. No other symptoms were observed or reported. Chest x-rays were normal. The examiner stated that the condition did not impact the Veteran’s ability to work. During his March 2019 hearing before the Board, the Veteran testified that during service while he was running in the woods, he fell and hit his chest. He reported that he felt chest discomfort when sleeping, spasms, sharp pains, and fatigue. He stated that he had visited the emergency room twice due to chest pain and tightness. He testified that he could not exercise due to shortness of breath. An April 2019 VA examination report shows the Veteran tripped over a log during service and injured his chest. Muscle strength testing was normal. The examiner indicated that the condition during service had resolved and that the Veteran had no current symptoms. The examiner stated that the condition did not impact the Veteran’s ability to work. Finally, the Veteran had an examination in January 2020. He reported chest wall tenderness, tightness, and stiffness. The examiner noted past injury to Muscle Group XXI with consistent fatigue and pain. The examiner stated that the Veteran would have difficulty lifting, twisting, and carrying objects for periods of time due to the muscle injury. The Board has considered the evidence but finds that the Veteran’s symptoms do not approximate the criteria for the next higher rating. As detailed above, for a finding of a moderate muscle disability, the injury must have been 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. However, the Veteran’s initial injury was not of this severity. Moreover, the Veteran’s medical treatment records do not show complaints or findings consistent with moderate impairment of Muscle Group XXI. In other words, there is no record of entrance and/or exit scars, small or linear, indicating short track of missile through muscle tissue; no record of any loss of deep fascia or muscle substance or impairment of muscle tonus; and no loss of power. At most, records note symptoms pain, fatigue, and occasional flare-ups, which are not sufficient for a finding of a moderate muscle injury. The diagnostic criteria are conjunctive, thus each element must be met for the Board can assign the next higher rating. Since the Veteran’s initial injury does not meet all of the criteria for classification as a moderate muscle injury, his symptoms of pain, fatigue, and occasional flare-ups are not sufficient to grant a higher rating. The Board has considered the Veteran’s statements that his service-connected injury to Muscle Group XXI had worsened over time. But his assertions are not necessarily inconsistent with the currently assigned rating, which treats the Veteran’s disability as a slight disability of the muscles. While he is competent to provide information about the extent and frequency of his pain and fatigue, the Veteran is not competent to diagnose the numerous objective medical findings which are listed in the criteria for a moderate disability of the muscles under 38 C.F.R. § 4.56(d)(4)(iii). The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the findings of the VA examiners based on their physical examinations of the Veteran. For these reasons, the Board finds that the criteria for a rating in excess of 10 percent for the Veteran’s service-connected chest wall discomfort have not been met at any time during the rating period. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. The appeal is denied. REASONS FOR REMAND 1. Entitlement to a TDIU, to include on an extraschedular basis, is remanded. The Veteran alleges that he cannot obtain and maintain substantially gainful employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran does not meet the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected chest wall discomfort (10 percent), laceration to the right lateral eyebrow (10 percent), painful scar of the right lateral eyebrow (percent), osteoarthritis of the left hand (10 percent, effective November 2018), and tinnitus (10 percent, effective November 2018). 38 C.F.R. § 4.16(a). His combined disability rating was 30 percent prior to November 19, 2018, and 40 percent thereafter; however, the evidence suggests that the Veteran may be unable to obtain and maintain substantially gainful employment commensurate with his history, education, skill and training due to his service-connected chest wall discomfort and left hand disabilities. See Compensation and Pension examination reports, May 2019 and January 2020. When a claimant is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director, Compensation Service (Director), for extraschedular consideration of entitlement to a TDIU. 38 C.F.R. § 4.16(b). The Board may not assign an extraschedular rating in the first instance. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). Based on the foregoing, the Board finds that a remand is warranted to refer this matter to the Director for consideration of a TDIU on an extraschedular basis. The matters are REMANDED for the following actions: 1. Refer the matter of entitlement to a TDIU on an extraschedular basis under § 4.16(b) to the Director, Compensation Service, and notify the Veteran of such action. 2. Thereafter, readjudicate the claim. If any benefits sought on appeal remain denied, issue a supplemental statement of the case and allow an appropriate period for response before returning the matter to the Board for adjudication. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.