Citation Nr: 21003024
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 13-12 389
DATE: January 19, 2021

ORDER

A rating in excess of 10 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a gunshot wound (GSW) with injury to Muscle Group I is denied.

A rating in excess of 20 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group II is denied.

An initial rating in excess of 10 percent for residuals of a GSW with injury to Muscle Group IV is denied.

A rating in excess of 10 percent for residuals of a shrapnel fragment wound (SFW) with injury to Muscle Group VI is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a rating of 10 percent prior to July 14, 2014, 20 percent from July 14, 2014, to February 6, 2020, and 30 percent thereafter, but no more, for left shoulder limitation of motion is granted.

A rating in excess of 10 percent for scar residuals of the left upper extremity (LUE) and posterior trunk of the left trapezius prior to July 14, 2014, and in excess of 20 percent thereafter is denied.

Compensable ratings prior to February 6, 2020, and a rating in excess of 20 percent thereafter for healed scars of the posterior trunk and left shoulder and arm area are denied.

An initial compensable rating for scar, LUE area, is denied.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective May 14, 2013, is granted.

FINDINGS OF FACT

1. Prior to February 6, 2020, the Veteran’s GSW residuals involving Muscle Group I resulted in no more than moderate impairment; from February 6, 2020, the disability resulted in severe impairment.  

2. Prior to February 6, 2020, the Veteran’s GSW residuals involving Muscle Group II resulted in no more than moderate impairment; from February 6, 2020, the disability resulted in severe impairment.  

3. Throughout the appeal period, the Veteran’s GSW residuals involving Muscle Group IV resulted in no more than moderate impairment.

4. Throughout the appeal period, the Veteran’s SFW residuals involving Muscle Group VI resulted in no more than moderate impairment.  

5. Prior to July 14, 2014, the Veteran’s left shoulder manifested in painful limitation of motion.

6. From July 14, 2014, to February 6, 2020, the Veteran’s left shoulder manifested in motion limited to shoulder level.

7. From February 6, 2020, the Veteran’s left shoulder manifested in motion limited to midway between side and shoulder level.  

8. Prior to July 14, 2014, one to two of the Veteran’s scars of the LUE and posterior trunk were painful.

9. From July 14, 2014, four of the Veteran’s scars of the LUE and posterior trunk were painful.  

10. Prior to February 6, 2020, the Veteran’s healed scar of the posterior trunk did not measure at least 39 sq. cm.

11. Prior to February 6, 2020, the Veteran’s healed scar of the left shoulder and arm area did not measure at least 39 sq. cm.

12. From February 6, 2020, the Veteran’s healed scars of the posterior trunk and left shoulder and arm area measured at least 77 sq. cm but less than 465 sq. cm.  

13. From February 6, 2020, the Veteran’s scar, LUE area, measured less than 929 sq. cm.  

14. The Veteran’s service-connected disabilities caused frequent absenteeism resulting in reprimand by his employer such that unemployability was approximated from May 14, 2013.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group I have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.49, 4.73, Diagnostic Criteria (DC) 5301.  

2. The criteria for a rating in excess of 20 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group II have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.49, 4.73, DC 5302.

3. The criteria for an initial rating in excess of 10 percent for residuals of a GSW with injury to Muscle Group IV have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.49, 4.73, DC 5304.

4. The criteria for an initial rating in excess of 10 percent for residuals of an SFW with injury to Muscle Group VI have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.49, 4.73, DC 5306.

5. The criteria for a rating of 10 percent prior to July 14, 2014, 20 percent from July 14, 2014, to February 6, 2020, and 30 percent thereafter, but no more, for left shoulder limitation of motion have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.105(e), 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, DC 5201.

6. The criteria for a rating in excess of 10 percent for scar residuals of the LUE and posterior trunk of the left trapezius prior to July 14, 2014, and in excess of 20 percent thereafter have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7804.

7. The criteria for compensable ratings prior to February 6, 2020, and a rating in excess of 20 percent thereafter for healed scars of the posterior trunk and left shoulder and arm area have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7801.

8. The criteria for an initial compensable rating for scar, LUE area have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7802.

9. The criteria for TDIU from May 14, 2013, have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from June 2001 to December 2006.  

These matters were previously before the Board in December 2018 at which time they were remanded for further evidentiary development.  Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claims.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran was granted service connection for GSW residuals, left trapezius and deltoid, affecting Muscle Group III under 38 C.F.R. § 4.73, DC 5303, at 20 percent disabling, and scar, left trapezius and deltoid, under 38 C.F.R. § 4.118, DC 7804, effective August 11, 2008.  A later rating decision amended the effective date for both disabilities to March 10, 2008.  The Veteran submitted a claim for an increased rating for his GSW residuals and scars in June 2011.  In an August 2012 rating decision, the Agency of Original Jurisdiction (AOJ) continued the GSW residuals 20 percent rating but recharacterized it under 38 C.F.R. § 4.73, DC 5302, pertaining to Muscle Group II.  The AOJ also continued the 10 percent rating for the scar under 38 C.F.R. § 4.118, DC 7804.  Additional ratings were granted for GSW residuals affecting Muscle Group VI under 38 C.F.R. § 4.73, DC 5306, at 10 percent; deep and nonlinear scar of the LUE under 38 C.F.R. § 4.118, DC 7801, at 0 percent; and linear scar, LUE, under 38 C.F.R. § 4.118, DC 7805, at 0 percent, all effective June 24, 2011, the date of claim.  In an October 2014 rating decision, the scar, left trapezius and deltoid, was recharacterized as four scars, LUE and posterior trunk left trapezius, and increased to 20 percent, effective July 14, 2014, under 38 C.F.R. § 4.118, DC 7804.  In a September 2015 rating decision, the AOJ determined that a clear and unmistakable error had occurred regarding the effective dates for service connection for GSW residuals, left trapezius and deltoid, and scar, left trapezius and deltoid, amending the effective date to March 10, 2008.  Service connection was also granted based on a prior error for GSW residuals affecting Muscle Group 1 under 38 C.F.R. § 4.73, DC 5301, at 10 percent, effective March 10, 2008.  Subsequent to the December 2018 remand, in a June 2020 decision, the rating for GSW residuals affecting Muscle Group I was increased to 40 percent and the rating for GSW residuals affecting Muscle Group II was increased to 40 percent, effective February 6, 2020.  The AOJ also granted service connection for GSW residuals involving Muscle Group IV under 38 C.F.R. § 4.73, DC 5306, at 10 percent, effective February 6, 2020.  The prior noncompensable ratings for deep and nonlinear scar of the LUE and linear scar, LUE, under 38 C.F.R. § 4.118, DC 7801, were recharacterized as one rating for a scar less than 12 sq. in. at 20 percent and scar, LUE area, at 0 percent, under 38 C.F.R. § 4.118, DC 7801 and DC 7802, respectively, effective February 6, 2020.  The ratings for GSW residuals affecting Muscle Group VI under 38 C.F.R. § 4.73, DC 5306, and for four painful scars, LUE and posterior trunk left trapezius, under 38 C.F.R. § 4.118, DC 7804 were not changed.  

The Board notes that the rating for GSW residuals affecting Muscle Group VI was inadvertently referred to as affecting Muscle Group IV in the December 2018 remand.  However, as outlined above, service connection was granted for GSW residuals affecting Muscle Group IV in the June 2020 decision.  As such, entitlement to increased ratings for GSW residuals affecting both Muscle Group IV and Muscle Group VI are before the Board, along with the other relevant GSW residual ratings.  

The Board also notes that although only the increased rating claim for painful scars under 38 C.F.R. § 4.118, DC 7804, was specifically appealed to the Board, ratings for scars are computed based on either number of scars, area of scars, or other effects, and are considered in conjunction with other scars affecting the same body part or originating from the same etiology.  As all of the Veteran’s scars affect his LUE and posterior trunk and originate from the same in-service injuries, and the additional ratings have been added during the appeal period, the Board will also consider the evaluations granted for healed scars of the posterior trunk and left shoulder and arm area, a scar less than 12 sq. in., and the scar, LUE, under 38 C.F.R. § 4.118, DC 7801 and DC 7802, respectively.  

In an October 2016 decision, entitlement to TDIU was granted, effective May 20, 2015.  As such, entitlement to TDIU prior to that date is currently before the Board.  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  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.  The veteran’s entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition.  See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592.  Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss.  Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

1. LUE GSW/SFW Residuals 

As noted above, claims for the Veteran’s GSW residuals currently before the Board include entitlement to a rating in excess of 10 percent prior to February 6, 2020, and in excess of 40 percent thereafter for Muscle Group I; a rating in excess of 20 percent prior to February 6, 2020, and in excess of 40 percent thereafter for Muscle Group II; an initial rating in excess of 10 percent for Muscle Group IV; and a rating in excess of 10 percent for Muscle Group VI.  The Board will also consider whether additional ratings are warranted based on limitation of motion resulting from the GSW residuals under the diagnostic codes pertaining to the shoulder and arm under 38 C.F.R. § 4.71a, DC 5200 to 5230, and pertaining to the elbow and forearm under 38 C.F.R. § 4.71a, 5205 to 5213.

The relevant diagnostic codes distinguish between the major (dominant) extremity and the minor (non-dominant) extremity.  See 38 C.F.R. § 4.69.  The Veteran’s left upper extremity is his major extremity.  A rating or combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.  See 38 C.F.R. § 4.68.  An amputation of the entire arm (major) is rated 90 percent disabling.  See 38 C.F.R. § 4.71a, DCs 5120, 5121.  Thus, the Veteran’s combined rating for his right arm cannot exceed 90 percent as a matter of law.  For the period on appeal, his current combined right arm rating was 30 percent prior to July 14, 2014; 40 percent prior to February 6, 2020; and 80 percent thereafter.  38 C.F.R. § 4.25.

Muscle injuries of the shoulder girdle and arm are rated under 38 C.F.R. § 4.73, DC 5301-5306.  DC 5301 pertains to Muscle Group I regarding the muscles arising from the extrinsic muscles of the shoulder girdle including the trapezius, levator scapulae, and serratus magnus.  The functions of these muscles include upward rotation of the scapula and elevation of the arm above shoulder level.  Under DC 5301, a noncompensable rating is warranted if impairment of Muscle Group I is slight; a 10 percent rating is warranted if impairment of this muscle group is moderate; a 30 percent rating for the major arm and a 20 percent rating for the minor arm is warranted if impairment of this muscle group is moderately severe; and a maximum rating of 40 percent for the major arm and a maximum rating of 30 percent for the minor arm is warranted if there is severe impairment. 

DC 5302 pertains to Muscle Group II regarding the extrinsic muscles of the shoulder girdle involved are the pectoralis major II (costosternal); latissimus dorsi and teres major (teres major, although technically an intrinsic muscle, is included with latissimus dorsi); pectoralis minor; and rhomboid.  The functions of these muscles include the depression of arm from vertically overhead to hanging at side; downward rotation of scapula; and acting with Group III in forward and backward swing of arm.  Under DC 5302, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 20 percent rating requires moderate disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe.  A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5303 pertains to Muscle Group III regarding the intrinsic muscles of the shoulder girdle including the pectoralis major (clavicular) and deltoid.  The functions of these muscles include the elevation and abduction of arm to level of shoulder and act with 1 and 2 of Group II in forward and backward swing of arm.  Under DC 5303, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 20 percent rating requires moderate disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe.  A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5304 pertains to Muscle Group IV regarding the intrinsic muscles of shoulder girdle including the supraspinatus, infraspinatus and teres minor, subscapularis, and coracobrachialis.  The functions of these muscles including stabilization of shoulder against injury in strong movements, holding head of humerus in socket, abduction, and outward rotation and inward rotation of arm.  Under DC 5304, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 10 percent rating requires moderate disability of the minor and major arm and a 20 percent rating requires moderately severe disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.  

DC 5305 pertains to Muscle Group V regarding the flexor muscles of the elbow including the biceps, brachialis, and brachioradialis.  The functions of these muscles include elbow supination (long head of biceps is stabilizer of shoulder joint) and flexion of elbow.  Under DC 5305, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 10 percent rating requires moderate disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe.  A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5306 pertains to Muscle Group VI regarding the extensor muscles of the elbow including the triceps and anconeus.  The functions of these muscles include extension of elbow (long head of triceps is stabilizer of shoulder joint).  Under DC 5306, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 10 percent rating requires moderate disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe.  A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

Muscle injuries of the forearm and hand are rated under 38 C.F.R. § 4.73, DC 5307-5309.  DC 5307 pertains to Muscle Group VII regarding the muscles arising from internal condyle of humerus, flexors of the carpus and long flexors of fingers and thumb, and pronator.  The functions of these muscles include flexion of wrist and fingers.  Under DC 5307, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 10 percent rating requires moderate disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe.  A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.  

DC 5308 pertains to Muscle Group VIII regarding the muscles arising mainly from external condyle of humerus; extensors of carpus, fingers, and thumb; and supinator.  The functions of these muscles include extension of elbow (long head of triceps is stabilizer of shoulder joint).  Under DC 5306, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body.  A 10 percent rating requires moderate disability of the minor and major arm and a 20 percent rating requires moderately severe disability of the minor and major arm.  A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

Under DC 5309, Muscle Group IX consists of the intrinsic muscles of hand, the thenar eminence, short flexor, opponens, abductor and adductor of the thumb, the hypothenar eminence, and the short flexor, opponens and abductor of the little finger.  The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements.  The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc.  Thus, injury to muscle group IX should be rated on limitation of motion, with a minimum 10 percent assigned.  38 C.F.R. § 4.73, DC 5309, Note.

The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision.  Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.  

The rating criteria for the shoulders are found at 38 C.F.R. § 4.71a, DCs 5200 through 5203.  DC 5200, which pertains to ankylosis of the scapulohumeral articulation, a 20 percent rating is warranted for favorable ankylosis with abduction to 60 degrees, a 30 percent rating is warranted for ankylosis which is intermediate between favorable and unfavorable, and a 40 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side.

DC 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating.  Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and 20 percent rating for the minor extremity.  Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity.  DC 5201 ”does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.”  Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

DC 5202 provides that a 20 disability rating is warranted regardless of whether the major or minor joint is involved, if there is malunion of the humerus with a moderate deformity; a 30 percent disability rating is warranted for the major joint, while a 20 percent disability rating is warranted for the minor joint, if there is a marked deformity.  A 20 percent disability rating is warranted regardless of whether it is the major or minor joint, if there are infrequent episodes of recurrent dislocation at the scapulohumeral joint, with guarding of movement at the shoulder level; and a 30 percent disability rating is warranted for the major joint, while a 20 percent disability rating is warranted for the minor joint, if there are frequent episodes of recurrent dislocation with guarding in all arm movements.  A 50 percent disability rating is warranted for the major joint, while a 40 percent disability rating is warranted for the minor joint, if there is fibrous union of the humerus.  A 60 percent disability rating is warranted for the major joint, while a 50 percent disability rating is warranted for the minor joint, if there is non-union of the humerus, alternatively referred to as a false flail joint.  Finally, an 80 percent disability rating is warranted for the major joint, while a 70 percent disability rating is warranted for the minor joint, if there is loss of the humeral head, alternatively referred to as a flail shoulder.

Under DC 5203 pertaining to impairment of the clavicle or scapula, a 10 percent rating is assigned for malunion or for nonunion without loose movement.  When there is nonunion with loose movement, a 20 percent rating is assigned.  A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula.

Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees.  38 C.F.R. § 4.71, Plate I.

Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).

As noted above, disabilities of the elbows and forearms are rated under 38 C.F.R. § 4.71a, DC 5205-5213.  DC 5205 provides that ankylosis of the elbow is to be rated as follows: for favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees, 40 percent for the major elbow and 30 percent for the minor elbow; for intermediate ankylosis of the elbow, at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, 50 percent for the major elbow and 40 percent for the minor elbow; for unfavorable ankylosis of the elbow, at an angle of less than 50 degrees or with complete loss of supination or pronation, 60 percent for the major elbow and 50 percent for the minor elbow. 

Under DC 5206, limitation of flexion of either the major or minor forearm to 100 degrees warrants a 10 percent rating; limitation of flexion of either forearm to 90 degrees warrants a 20 percent rating; limitation of flexion of the major and minor forearm to 70 degrees warrants 30 and 20 percent ratings, respectively; limitation of flexion of the major and minor forearm to 55 degrees warrants 40 and 30 percent ratings, respectively; and limitation of flexion of the major and minor forearm to 45 degrees warrants 50 and 40 percent ratings, respectively.  

Under DC 5207, a 10 percent rating is assigned for extension in either the major or minor extremity limited to 60 degrees; a 20 percent rating is assigned with extension in either the major or minor extremity limited to 75 degrees; and a 30 percent rating is assigned for extension in the major extremity limited to 90 degrees.

DC 5208 evaluates limitation of flexion and extension and provides that a 20 percent rating is assigned for flexion limited to 100 degrees and extension limited to 45 degrees.

Under DC 5209, joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, warrants a 20 percent rating for the major and minor arm and other impairment of flail joint warrants a 60 percent rating for the major arm.

Under DC 5210, nonunion of the radius and ulna with flail false joint and Diagnostic Code 5211 for impairment of the ulna are not applicable as the Veteran elbow has not been diagnosed with impairment of ulna or flail false joint.

Under DC 5211, malunion of the ulna with bad alignment is rated 10 percent for the major side and 10 percent for the minor side; nonunion of the ulna in the lower half is rated 20 percent for the major side and 20 percent for the minor side; nonunion of the ulna in the upper half, with false movement, without loss of bone substance or deformity is rated 30 percent for the major side and 20 percent for the minor side; nonunion of the ulna in the upper half, with false movement, with loss of bone substance (1 inch (2.5cms) or more) and marked deformity is rated 40 percent for the major side and 30 percent for the minor side. 

Under DC 5212, impairment of the radius with malunion and bad alignment warrants a 10 percent rating for both arms; with nonunion in upper half warrants a 20 percent rating for both arms; without loss of bone substance or deformity warrants a 30 percent disability evaluation for the major arm and 20 percent evaluation for the minor arm; with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity warrants a 40 percent evaluation for the major arm and a 30 percent evaluation for the minor arm.

Under DC 5213, impairment of supination and pronation of the major and minor forearms are assigned a 10 percent evaluation for limitation of supination to 30 degrees or less.  A 20 percent evaluation is warranted for limitation of pronation with motion lost beyond the last quarter of the arc and where the hand does not approach full pronation.  For the major elbow, a 30 percent rating is assigned when motion is lost beyond the middle arc, and for the minor elbow, a 20 percent rating is assigned.  A 20 percent evaluation is also assigned for loss of supination or pronation (bone fusion) where the hand is fixed near the middle of the arc or moderate pronation in both the major and minor elbow.  When the hand is fixed in full pronation, a 30 percent rating is warranted for the major elbow and a 20 percent rating for the minor elbow.  When the hand is fixed in supination or hyperpronation, a 40 percent rating is granted for the major elbow and a 30 percent rating for the minor elbow.

Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees.  38 C.F.R. § 4.71, Plate I.

Turning to the evidence of record, in an August 2011 statement, the Veteran reported that he had had left shoulder pain since service.  He underwent a muscle injuries examination in September 2011.  He stated that since his in-service SFW and GSW in his LUE, he felt pain in his left shoulder around the acromioclavicular (AC) joint and at the exit wound in the left upper back during changes in weather.  He noted that he had been unable to exercise his LUE since the injury.  The LUE Muscle Groups involved were noted by the examiner to include Group I and Group III.  There were no associated fascial defects and the muscle injuries did not affect muscle substance or function.  Associated signs and symptoms included lowered threshold for fatigue and consistent fatigue-pain.  Muscle strength testing was 5 out of 5 in all muscle groups and there was no muscle atrophy.  X-rays revealed retained shell fragments in Muscle Group III.  An x-ray of the left humerus was negative except for four tiny metallic densities either within or on the surface of the skin.  A left shoulder x-ray demonstrated no bony or joint space abnormality and small skin surface metallic foreign bodies.  Range of motion in the left shoulder was flexion to 150 degrees, abduction to 160 degrees, internal rotation to 90 degrees, and external rotation to 75 degrees.  There was no additional loss of motion or other functional impairment with repetitive use testing.  

A friend of the Veteran’s submitted a statement in April 2012 noting that he experienced severe pain in his LUE in cold weather and extreme heat.  He had limitation of motion and pain when doing lifting with normal household duties.

Another VA muscle injuries examination was conducted in May 2012.  Associated muscle groups from the in-service SFW and GFW included Group II and Group VI.  Fascial defects included loss of deep fascia shown by palpation.  Muscle substance or function was not affected.  Muscle strength testing was normal in all muscle groups and there was no muscle atrophy.  

The May 2012 examiner provided an addendum opinion in July 2012, noting that signs and symptoms of the SFW/GSW injuries included consistent loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination.  

The Veteran underwent a VA shoulder and arm examination in July 2013.  Diagnoses included osteoarthrosis of the left shoulder, mild, and rotator cuff strain as a residual of GSW.  The Veteran denied flare-ups of symptoms.  Left shoulder flexion was to 140 degrees with pain and abduction was to 150 degrees with pain.  External rotation was limited to 75 degrees with pain, but internal rotation was normal at 90 degrees with no evidence of painful motion.  Range of motion was the same after repetitive use testing on all planes.  Functional impairment included less movement than normal and weakened movement.  There was pain on palpation but no guarding of the left shoulder.  Muscle strength testing was 5 out of 5 in both left shoulder abduction and flexion.  There was no ankylosis in the shoulder.  The Hawkins’ impingement test, empty-can test, and crank apprehension and relocation test yielded negative results whereas the external rotation/infraspinatus strength test and lift-off subscapularis test were positive.  There was a history of mechanical symptoms in the left shoulder but no history of recurrent dislocation of the left glenohumeral joint.  The Veteran had no AC joint condition or any other impairment of the clavicle or scapula.  

In July 2013, the Veteran stated that he had to take medication for his GSW residuals and that he could feel metal in his skin.  His GSW residuals limited most of his mobility.  He was left-handed but was forced to use his right arm to do most things.  He said he screamed in pain when he lifted his arm and was unable to rotate or use his left arm fully.  

Another VA shoulder and arm examination was conducted in July 2014.  Left shoulder strain was diagnosed.  The Veteran reported flare-ups, noting that somedays he had a constant pain of a 7 out of 10 and somedays it would be 9 or 10 out of 10.  Sometimes he did not want to get out of bed and it impacted his ability even to sit in a chair.  Left shoulder flexion was to 130 degrees with pain and abduction was to 90 degrees with pain.  Repetitive use testing resulted in further limitation with flexion to 125 degrees and abduction to 90 degrees.  Functional impairment was noted to be less movement than normal, weakened movement, excess fatigability, and pain on movement.  Pain was noted on palpation and guarding of the shoulder was observed.  Muscle strength testing was 5 out of 5 in forward flexion and abduction.  There was no ankylosis.  The Hawkins’ impingement test, external rotation/infraspinatus strength test, and lift-off subscapularis test all yielded negative results while the empty-can test was positive.  There was a history of mechanical symptoms in the shoulder and recurrent dislocation occurring infrequently.  The crank apprehension and relocation test was negative.  The examiner indicated that the Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula.  New x-rays were obtained which revealed an unremarkable left humerus and a normal left shoulder.  Regarding functional impact, the examiner stated that the Veteran could not lift or raise his LUE above eye level because of pain, could not push like before, and had problems pushing shopping carts.  The examiner determined that flexion would be limited to 120 degrees and extension to 85 degrees due to pain during flare-ups (noted as “Mitchell criteria”).

Another VA muscle injuries examination was conducted in July 2014.  The examiner indicated that the Veteran’s SFW/GSW injuries affected Muscle Groups I, V, and VI.  There were no fascial defects but there was some impairment of muscle tonus.  Associated signs and symptoms included consistent loss of power in Muscle Group I, V, and VI and it was noted that he could not lift or push; consistent weakness in Muscle Group I and VI; and consistent fatigue-pain in Muscle Groups I, V, and VI.  Muscle strength testing was normal across all muscle groups and there was no muscle atrophy.  The examiner noted that Muscle Group I represented the site of the GSW exit, Muscle Group V represented the site of scars from shrapnel wounds, and Muscle Group VI was the site of the GSW entry.  She noted that the previous muscle injury sites (Group II and Group VI only) should be corrected.  

The Veteran underwent a VA muscle injuries examination in February 2020.  He described pain in his posterior shoulder and superior shoulder blade, rated a 6 out of 10 usually and a 9 out of 10 at its worst.  He had significant pain with movement of his left shoulder, loss of range of motion, weakness, and altered sensation.  He stated that repetitive motion, cold weather, and extreme heat made his symptoms worse and they improved with rest, gentle heat, pain medication, and lying on his right side.  The examiner indicated that the muscle groups associated with his service-connected disability included Muscle Groups I, II, IV, and VI.  Palpation showed loss of deep fascia and there was some loss of muscle substance, specifically a large loss of muscle bulk in the posterior left trunk with some filling in of subcutaneous fat.  Tests of endurance or coordinated movements compared with the corresponding muscles of the uninjured side indicated severe impairment of function.  Signs and symptoms of muscle disability included loss of power that was severe in Muscle Groups I and II and moderate in Group IV; weakness that was severe in Groups I and II and moderate in Group IV; lowered threshold of fatigue that was severe in Groups I and II and moderate in Group IV; and fatigue and/or pain that was severe in Groups I and II and moderate in Group IV.  The examiner noted that the damage to Group IV was mild and there had been excellent compensation by the surrounding muscles.  The initial GSW and subsequent wide infection which necessitated surgical debridement caused significant muscle injury in Groups I and II and the nerve damage to the brachial plexus from the GSW contributed to the damage/fatigue of the muscles of Group IV.  Muscle strength testing was 5 out of 5 in all muscle groups other than shoulder abduction, which was 4 out of 5, indicating less than normal strength.  The examiner determined that the overall disability to Muscle Groups I and II was severe and the overall disability to Muscle Groups IV and VI was mild.  In support of that determination, she stated that the Veteran had significant muscle injury with loss of muscle bulk of the left trapezius (Group I) and latissimus dorsi (Group II) muscles with marked weakness and loss of range of motion of the left shoulder.  That muscle damage was associated with a significant loss of function, including weakness, poor endurance, and loss of range of motion.  The damage to the rotator cuff muscles (Group IV) was mild and likely related to the extension of the infection and the surgical debridement of the tissue in service.  The moderate functional loss was likely related to both muscle damage as well as damage to the brachial plexus from the GSW.  The damage to the triceps (Group VI) muscle was mild, related to the GSW, with excellent compensation of the surrounding muscles.  There was only minimal functional loss in that muscle group.  

A VA shoulder and arm examination was also conducted in February 2020.  The Veteran described pain in the posterior shoulder and superior shoulder blade, rated a 6 out of 10 usually and a 9 out of 10 at its worst.  He had significant pain with movement of his left shoulder, loss of range of motion, weakness, and altered sensation.  He stated that repetitive motion, cold weather, and extreme heat made his symptoms worse and they improved with rest, gentle heat, pain medication, and lying on his right side.  The Veteran described significant loss of range of motion and that he could not do any shoulder height or overhead work.  He had difficulties with several activities of daily living, including showering, carrying laundry or groceries, and light housework.  He denied flare-ups.  Active range of motion was to 90 degrees in flexion and abduction, 15 degrees in external rotation, and 90 degrees in internal rotation.  Passive range of motion was to 95 degrees in flexion, 100 degrees in abduction, 20 degrees in external rotation, and 90 degrees in internal rotation.  Pain was noted on flexion, abduction, and external rotation in both active and passive motion.  There was evidence of pain with weight-bearing and with nonweight-bearing.  The loss of range of motion was determined to greatly limit his ability to lift, carry, or reach.  There was moderate tenderness to the AC joint, supraspinatus muscle, and trapezius muscle and no crepitus.  The Veteran was not able to perform repetitive-use testing.  He attempted, but pain and weakness prevented him from completing three repetitions.  The examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time.  Pain, fatigue, weakness, and lack of endurance were determined to result, and range of motion was limited to 45 degrees of flexion and abduction, 10 degrees of external rotation, and 90 degrees of internal rotation.  Contributing factors of disability were determined to be less movement than normal, weakened movement, and deformity.  Muscle strength testing was 4 out of 5 in forward flexion and abduction but there was no muscle atrophy.  There was no ankylosis.  A rotator cuff condition was suspected.  The Hawkins’ impingement test had negative results; the empty-can and external rotation/infraspinatus strength test had positive results; and the Veteran was unable to perform the lift-off subscapularis test.  There was no shoulder instability, dislocation, or labral pathology suspected and no clavicle, scapula, or sternoclavicular joint condition suspected.  An AC joint condition resulted from residuals of the GSW with tenderness to palpation.  The cross-body adduction test was positive.  

A VA elbow and forearm examination was also conducted in February 2020.  The Veteran described pain in the left posterior humeral/ulnar joint that was usually 3 out of 10 and 6 out of 10 at its worst.  The pain was worse with full extension and he struggled to carry things such as groceries due to pain.  He denied any loss of range of motion but did experience some occasional tingling in the lateral aspect of his left forearm.  He had some limitation with reaching and typing but he was unable to determine if that was due to an elbow or shoulder condition.  He denied flare-ups.  Active and passive range of motion were normal with flexion from 0 to 145 degrees, extension from 145 to 0 degrees, forearm supination from 0 to 85 degrees, and forearm pronation from 0 to 80 degrees.  Pain was noted upon extension but did not result in functional loss.  There was mild tenderness to palpation of the humeral/ulnar joint related to the GSW residuals.  There was evidence of pain with weight-bearing but no evidence of pain with nonweight-bearing.  There was no evidence of crepitus.  The Veteran was able to perform repetitive use testing without additional loss of function or range of motion.  The examination was medically consistent with the Veteran’s statement’s describing functional loss with repetitive use over time.  No pain, weakness, fatigability, or incoordination was determined to result with repeated use over time and range of motion was determined not to be further limited in degrees of motion.  There were no additional contributing factors of disability.  Muscle strength testing was 5 out of 5 in flexion and extension without reduction in muscle strength or muscle atrophy.  There was no ankylosis and no flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation.  The examiner stated that the Veteran had a mild muscle injury of the triceps muscle from the initial GSW but there had been excellent compensation by the surrounding muscles and functional loss was minimal.  

In a July 2020 statement, the Veteran noted that a February 2020 date of increase for his service-connected disabilities was an insult because he has always had pain and limitation of function.

At the outset, the Board finds that the examinations, when taken in conjunction with the VA records and lay statements, provide an adequate basis upon which to render a decision regarding all of the manifestations of the Veteran’s in-service GSW/SFW injuries.  Although the July 2013 examination did not capture movement on passive motion or in nonweight-bearing, it is clear from the totality of the evidence, including the Veteran’s own statements, that his symptoms were worse with active motion and weight-bearing activities (i.e., lifting overhead, carrying groceries), suggesting that measuring range of motion on active, weight-bearing motion, as was done at the examination, best represents the extremes of the LUE disability.  The Veteran denied flare-ups at most examinations but described situations when his pain was exacerbated, such as with changes in weather.  The additional limitation in terms of degrees of range of motion during a flare-up was provided by the examiner on the one occasion the Veteran did endorse flare-ups.  Finally, the Veteran himself has provided ample statements regarding the limitation of his activities from which to assess the extent and severity of his LUE disability.  As such, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed.  DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158.

The Board also recognizes that VA examiners identified the Veteran’s LUE disability as involving Muscle Group III at the September 2011 examination and Muscle Group V at the July 2014 examination.  However, subsequent examiners clarified the muscle groups involved and noted that his disability ratings should be altered to reflect the accurate muscle group involvement.  The February 2020 examiner identified the particular muscles within each group that were involved and described in detail their musculature and limitation of function.  As such, the Board finds that the February 2020 examiner’s characterization of the Veteran’s LUE muscle group involvement most accurately reflects the manifestations of the Veteran’s LUE disability.  Therefore, no alterations are warranted regarding which muscle groups are affected by the Veteran’s LUE disability.

(a.) A rating in excess of 10 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group I is denied.

The Board finds that a rating in excess of 10 percent prior to February 6, 2020, for GSW residuals with injury to Muscle Group I is not warranted.  Prior to February 2020, there were no fascial defects and muscle function was not noted to be affected.  There was some impairment of muscle tonus.  Loss of power, weakness, and fatigue-pain were noted.  However, muscle strength testing was normal and there was no atrophy.  The Board finds that this symptom presentation most closely approximates moderate severity.  At no point prior to February 2020 did Muscle Group I demonstrate limitation of function approximating moderately severe disability.  VA examinations revealed moderate functional impact and VA treatment records did not reflect ongoing treatment other than pain medication as needed.  As such, a rating in excess of 10 percent prior to February 6, 2020, is not warranted.

The February 2020 VA muscle injuries examination reflected a worsening in severity of the Muscle Group I disability.  Loss of power, weakness, lowered threshold of fatigue, and fatigue and/or pain were determined to be severe in Muscle Group I.  The examiner determined that there was loss of muscle bulk and weakness in the left trapezius and the overall disability to Muscle Group I was severe.  As such, a 40 percent rating reflecting severe disability under DC 5301 was awarded the date of the examination.  A 40 percent rating is the highest evaluation available under DC 5301.  The Board finds that the impairment of function in the Group I muscles demonstrates that there is no symptomology in that muscle group not captured by the maximum rating.  As such, a rating in excess of 40 percent is not warranted.  

The Board recognizes the Veteran’s contention that his LUE disability did not worsen from moderate to severe overnight the day of the February 2020 examination.  The effective date of an award of increased compensation is the earliest date as of which it is ascertainable that an increase in disability occurred.  See 38 U.S.C. § 5110(b)(2).  The February 2020 examination is the first clinical evidence of a factually ascertainable increase in severity.  The July 2014 examination did not demonstrate severe symptomology and VA treatment records did not reflect an increase in symptoms between that examination and the February 2020 examination.  As such, the increase in disability was first factually ascertainable February 6, 2020, and an earlier effective date for the 40 percent award is not warranted.  

Accordingly, a rating in excess of 10 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group I is not warranted.

(b.) A rating in excess of 20 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group II is denied.

The Board finds that a rating in excess of 20 percent prior to February 6, 2020, for GSW residuals with injury to Muscle Group II is not warranted.  Prior to February 2020, there were no fascial defects and muscle function was not noted to be affected.  There was some impairment of muscle tonus.  Loss of power, weakness, and fatigue-pain were noted.  However, muscle strength testing was normal and there was no atrophy.  The Board finds that this symptom presentation most closely approximates moderate severity.  At no point prior to February 2020 did Muscle Group II demonstrate limitation of function approximating moderately severe disability.  VA examinations revealed moderate functional impact and VA treatment records did not reflect ongoing treatment other than pain medication as needed.  As such, a rating in excess of 20 percent prior to February 6, 2020, is not warranted.

The February 2020 VA muscle injuries examination reflected a worsening in severity of the Muscle Group II disability.  Loss of power, weakness, lowered threshold of fatigue, and fatigue and/or pain were determined to be severe in Muscle Group II.  The examiner determined that there was loss of muscle bulk and weakness in the left latissimus dorsi and the overall disability to Muscle Group II was severe.  As such, a 40 percent rating reflecting severe disability under DC 5302 was awarded the date of the examination.  A 40 percent rating is the highest evaluation available under DC 5302.  The Board finds that the impairment of function in the Group II muscles demonstrates that there is no symptomology in that muscle group not captured by the maximum rating.  As such, a rating in excess of 40 percent is not warranted.  

Further, the February 2020 examination is the first clinical evidence of a factually ascertainable increase in severity.  The July 2014 examination did not demonstrate severe symptomology and VA treatment records did not reflect an increase in symptoms between that examination and the February 2020 examination.  As such, the increase in disability was first factually ascertainable February 6, 2020, and an earlier effective date for the 40 percent award is not warranted.  

Accordingly, a rating in excess of 20 percent prior to February 6, 2020, and in excess of 40 percent thereafter for residuals of a GSW with injury to Muscle Group II is not warranted.

(c.) An initial rating in excess of 10 percent for residuals of a GSW with injury to Muscle Group IV is denied.

The Board finds that an initial rating in excess of 10 percent for GSW residuals involving Muscle Group IV is not warranted.  The February 2020 examination reflected moderate loss of power, weakness, lowered threshold of fatigue, and fatigue and/or pain in the Group IV muscles.  The examiner noted that the damage to Group IV was mild and there had been excellent compensation by the surrounding muscles.  Damage to the rotator cuff muscles was mild with moderate functional loss.  The Board finds that this symptom presentation most closely approximates moderate impairment.  At no point in the examination or in the Veteran’s VA treatment records were symptoms approximating moderately severe impairment demonstrated.  Further, muscle strength testing was normal and there was no atrophy.  As such, a rating in excess of 10 percent is not warranted.

The Board also notes that entitlement to the 10 percent rating was not demonstrated prior to the February 2020 examination.  Indeed, all other VA examiners did not note any involvement of the Group IV muscles.  As such, entitlement to the rating arose as of the date of the examination.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

(d.) A rating in excess of 10 percent for residuals of an SFW with injury to Muscle Group VI is denied.

The Board finds that an initial rating in excess of 10 percent for SFW residuals involving Muscle Group VI is not warranted.  At the May 2012 examination, muscle substance or function was not affected.  At the May 2012 and July 2014 examinations, loss of power, weakness, and fatigue-pain were noted.  At the February 2020 examination, loss of power, weakness, lowered threshold of fatigue, and fatigue and/or pain were found not to occur in Muscle Group VI.  The February 2020 examiner determined that the injury to Muscle Group VI was mild with only minimal functional loss.  The Board finds that this symptom presentation best approximates moderate impairment.  At no point during the appeal period has the involvement of Muscle Group VI approximated moderately severe impairment.  Injury and functional loss have been described as mild at worst and muscle strength testing was normal.  As such, a rating in excess of 10 percent for residuals of an SFW with injury to Muscle Group VI is not warranted at any time throughout the appeal period.

(e.) A rating of 10 percent prior to July 14, 2014, 20 percent from July 14, 2014, to February 6, 2020, and 30 percent thereafter for left shoulder limitation of motion is granted.

The Board finds however that there is significant symptomology in the Veteran’s LUE resulting from the in-service GSW and SFW injuries which is not addressed by the muscle injury ratings alone.  Limitation of motion in the left shoulder affecting functional ability has been demonstrated throughout the appeal period and the Veteran has consistently reported ongoing pain since service.  He has been diagnosed with osteoarthritis in the left shoulder and rotator cuff/shoulder strain resulting from the in-service injuries.  

The Board notes that ankylosis of the left shoulder, impairment of the humerus, and impairment of the clavicle or scapula have not been demonstrated warranting additional ratings under 38 C.F.R. § 4.71a, DC 5200, 5202, or 5203.  As such, rating the shoulder manifestations of the Veteran’s GSW/SFW disability is most appropriate under DC 5201 pertaining to limitation of motion of the arm.  

Under the criteria of 38 C.F.R. § 4.59, functional loss due to painful motion in musculoskeletal disabilities may be rated the minimum compensable rating for a joint with arthritis.  See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  Painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  38 C.F.R. § 4.71a, DC 5003, pertaining to degenerative arthritis, provides that when limitation of motion under the appropriate diagnostic code for a specific joint is noncompensable, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

At the September 2011 and July 2013 examinations, flexion and abduction were not limited to a compensable rate under DC 5201.  However, there was evidence of painful motion affecting function of the left shoulder.  As such, a maximum 10 percent rating is warranted.  See 38 C.F.R. § 4.59.  At the July 2014 examination, abduction was limited to 90 degrees, or shoulder level, with pain.  As such, a 20 percent rating under DC 5201 is warranted as of the date of the examination, July 14, 2014.  The Veteran’s left arm was not limited to midway between side and shoulder level including with repetitive use or during flare-ups.  As such, a rating in excess of 20 percent is not warranted.  The February 2020 examination reflected flexion and abduction to 90 degrees on active and passive motion.  However, the examiner determined that with repetitive use over time, flexion and abduction would be limited to 45 degrees, or midway between side and shoulder level.  As such, the Board finds that a 30 percent rating under DC 5201 is warranted the date of the examination, February 6, 2020.  Motion was not limited to 25 degrees from side either at the examination or at any time in the treatment records.  As such, a rating in excess of 30 percent is not warranted.

Accordingly, an additional rating for left shoulder limitation of motion is warranted at 10 percent prior to July 14, 2014, at 20 percent from July 14, 2014, to February 6, 2020, and at 30 percent thereafter.   

The Board has considered whether additional ratings are warranted based on limitation of motion of the elbow or forearm, as well.  However, although the Veteran reported pain in the elbow area, range of motion on flexion and extension has been demonstrated to be entirely normal.  Further, there is no evidence of ankylosis, nonunion of the radius and ulna, impairment of the ulna or radius, or impairment of supination and pronation.  As such, additional ratings under 38 C.F.R. § 4.71a, DC 5205-5213, are not warranted.

2. Scars

As outlined above, the Veteran is currently in receipt of a 20 percent rating prior to July 14, 2014, and a 40 percent rating thereafter for painful scars of the LUE and posterior trunk of the left trapezius under 38 C.F.R. § 4.118, DC 7804.  He also received noncompensable ratings for deep and nonlinear scar of the LUE and linear scar, LUE, under 38 C.F.R. § 4.118, DC 7801 and DC 7805 (later changed to DC 7801), respectively, prior to February 6, 2020.  He also has current ratings of 20 percent for scar less than 12 sq. in. and a noncompensable rating for scar, LUE, under 38 C.F.R. § 4.118, DC 7801 and 7802, respectively, from February 6, 2020.

VA amended the criteria for rating skin disabilities effective from August 13, 2018.  These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018.  Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.  The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.  Here, the Veteran submitted his claim for increase on June 24, 2011.  As such, the pre-amended criteria will be considered throughout the entire appeal period and the amended criteria will be considered from August 13, 2018. 

Prior to August 13, 2018, under DC 7800, which contemplates scars or disfigurement of the head, face, or neck, a 10 percent rating is warranted for one characteristic of disfigurement.  A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.  A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating.  A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating.

Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

DC 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear.  Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent.  Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent.  Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent.  Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent.  Note (1) specifies that a deep scar is one associated with underlying soft tissue damage.  Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 

DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater.  Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under §4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck.

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful.  Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 

DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800, 7801, 7802, and 7804 under an appropriate diagnostic code.  

Under the amended criteria which became effective on August 13, 2018, DC 7800 and 7804 were not changed. 

DC 7801 now provides for burn scars or scars due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage.  The rating criteria for this code remained the same.  But Note (1) now reads as follows: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Note (2) now reads as follows: A separate evaluation may be assigned for each affected zone of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 

Under the amended criteria which became effective on August 13, 2018, DC 7802 now provides for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  The rating criteria remained the same.  But Note (1) now reads: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads:  A separate evaluation may be assigned for each affected zone of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 

DC 7805 was amended in that the parentheses which noted that linear scars were included was removed.  The title now provides for scars, other and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804.  The rating criteria remained the same.

In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.

Turning to the evidence of record, the Veteran underwent VA examinations in September 2011.  Examiners noted that there were entrance and exit scars indicating the track of his two in-service injuries through muscle groups that were ragged, depressed, and adherent.  The entry scar was itchy, and the exit scar was painful.  One scar located in the left lateral proximal humerus near the junction of the shoulder was deep and non-linear, measuring 1.2 cm by 1.2 cm.  The approximate total area of the scar was 1.44 sq. cm.  Another scar was located on the left upper lateral back near the junction of the left shoulder which was deep and non-linear, measuring 11 cm by 3 cm.  The approximate total area of the scar was 33 sq. cm.  The examiner determined that one of the scars was painful (the posterior trunk scar), especially with lifting or using the left arm and with changes in weather.  There were no unstable scars.  The examiner stated that regarding limitation of function, the LUE and posterior trunk scars caused limited movement of the left shoulder.  The examiner concluded that the scars would limit the Veteran’s ability to work in a job where he had to work with his arms above his head and also limit his ability to do heavy physical jobs requiring lifting, carrying, pushing, and pulling.  

Another VA examination was conducted in May 2012.  Two scars were observed, over the left trapezius and midway below the left axilla in the posterior left upper back.  One scar was linear, measuring 0.5 cm.  The approximate total area was 0.5 sq. cm.  Another was deep and non-linear, measuring 11 cm by 3 cm.  The examiner determined that the Veteran had two painful scars and no unstable scars.  There was no associated functional impact.  A VA muscle injuries examiner noted that the Veteran had a wide, incisional scar in the exit wound of the left upper posterior back.  

The Veteran underwent another VA examination in July 2013.  The examiner determined that the Veteran had one painful scar, with dysesthesias, pruritis, and paresthesias in the exit wound (posterior left upper back scar) but the entrance wound (LUE scar) was asymptomatic.  None of the scars were unstable.  The LUE scar was described as linear and measuring 1 cm by 1 cm.  The back scar was described as being linear and 11 cm long and varying in width with maximum width at 3.5 cm and minimum at 2 cm.  The total approximate area was determined to be 34 sq. cm.  The examiner concluded that the functional impact of the scars was that the Veteran could not engage in heavy work involving lifting heavy weights above the shoulder.  

In a July 2013 statement, the Veteran reported that although his LUE scars were small, they were still noticeable.  His posterior trunk scar was worse due to an infection in service, making for a very ugly scar.  That scar was raised with hard tissue underneath.

In April 2014, the Veteran contended that his scars were larger and more painful than reflected in VA examinations.  He described activities he could no longer do with his LUE due to muscle damage and scars.  

VA examinations were again conducted in July 2014.  Three scars were observed on the Veteran’s LUE.  Scar number one was circular and located on the anterior aspect of the upper third of the left arm from the in-service SFW injury in the biceps muscle.  The scar measured 0.3 cm by 0.3 cm.  Scar number two was circular and located on the anterior aspect of the upper third of the left arm from the in-service SFW injury in the biceps muscle.  It measured 0.4 cm by 0.2 cm.  Scar number three was located on the posterolateral aspect of the upper third of the left arm from the in-service GSW in the triceps muscle.  It measured 1.0 cm by 1.0 cm.  A fourth scar was non-linear from the GSW and located on the uppermost left of the posterior trunk at the posterior axillary line in the left trapezius.  It measured 10.5 cm by 3.5 cm.  The approximate total area of the LUE deep, non-linear scars was 1.17 sq. cm and the approximate area of the posterior trunk scar was 36.75 sq. cm.  The examiner determined that the Veteran had four painful scars.  Scars one and two experienced dull pain, more painful with extreme heat and cold.  Scar three had constant pain, more painful when lifting or stretching.  Scar four had extreme and constant pain whenever stretching or extending the arm or moving it.  The scar was also painful to touch, including shower pressure, and painful to temperature.  Scar four was also unstable with one episode of dehiscence.  Functional impact of the scars was noted to be limitation in lifting and sitting for prolonged periods as well as drowsiness from pain medication.  A VA muscle injury examiner noted that the scars were ragged, depressed, and adherent, indicating wide damage to the muscle groups.  

The Veteran underwent another VA examination in August 2015.  He stated that the scars on his left arm and left side of his back became painful especially when pressure was applied to them or when he was exposed to extreme cold or heat.  No limitation in motion was reported.  A scar on the anterolateral aspect of the upper third of the LUE was noted to be superficial and non-linear, measuring 1.0 cm by 1.0 cm.  A scar on the lateral aspect of the upper part of the left side of the posterior trunk was noted to be superficial and non-linear, measuring 2.75 cm by 10.5 cm.  The approximate total area of the scar was 29.875 sq. cm.  The examiner determined that the Veteran had two painful scars; however, the painful scars were determined to be on the right forearm and left lower leg.  

Another VA examination was conducted in February 2020.  The examiner observed two scars in the LUE.  Scar number one was located in the anterolateral upper arm about midway between shoulder and elbow and measured 1.0 cm by 1.5 cm.  Scar number two was described as shrapnel wounds to the forearm, too numerous to count, measuring 2.5 cm by 2.5 cm.  The approximate total area of the LUE affected without underlying tissue damage was 5 sq. cm.  The approximate total area of the LUE affected with underlying tissue damage was 1.5 sq. cm.  One scar was observed on the posterior trunk, just inferior and lateral to the left shoulder blade.  The scar measured 13 cm by 5.8 cm.  The approximate total area of the posterior trunk affected was 75.4 sq. cm.  The examiner noted that there was a large area of loss of muscle mass and subcutaneous tissue under the large scar on the posterior trunk.  There was a loss of subcutaneous tissue under both of the measured scars on the LUE, as well.  The examiner determined that one of the scars (the posterior trunk scar) was painful, with reported hyperesthesia with marked sensitivity to light touch and temperature changes.  None of the scars were unstable.  Functional impact was determined to be that the Veteran was unable to do any shoulder height or overhead work.  He could not lift or carry more than 10 to 15 pounds.  He had significant weakness on his dominant side, especially with repetitive motion.  A VA muscle injury examiner noted that there were entrance and exit scars indicating the short track of the missiles throughout muscle tissue resulting in ragged, depressed, and adherent scars.  

At a February 2020 VA elbow and forearms examination, the scar to the anterolateral left upper arm was measured as 1.4 cm by 1.0 cm.  At a shoulder and arm examination, the scar to the posterior trunk was measured to be 13 cm by 5.8 cm.  

In a July 2020 statement, the Veteran argued with the February 2020 date for changes in his scar ratings.  He stated that the sizes of his scars had not changed and the tissue damage had gotten worse over time.  He contended that as he gained weight and his body got bigger, his scars appeared smaller.

(a.) A rating in excess of 10 percent for scar residuals of the LUE and posterior trunk of the left trapezius prior to July 14, 2014, and in excess of 20 percent thereafter.  

The Board finds that a rating in excess of 10 percent prior to July 14, 2014, and in excess of 20 percent thereafter for painful scars is not warranted.  Under the criteria of 38 C.F.R. § 4.118, DC 7804, a 10 percent rating is warranted for one or two painful or unstable scars and a 20 percent rating is warranted for three or four painful or unstable scars.  These criteria were not changed by the August 13, 2018, amendments.  At the September 2011, May 2012, and July 2013 VA examinations, the Veteran was determined to have one to two painful or unstable scars.  As such, a rating in excess of 10 percent is not warranted.  At the July 2014 examination, four painful scars were observed.  As such, as of the date of that examination, July 14, 2014, a 20 percent rating is warranted.  At no point prior to that date did VA treatment records or lay statements reflect an increase in the total number of painful scars.  As such, a 20 percent rating is warranted as of July 14, 2014, but no earlier.  Further, there are no indications in subsequent examinations or treatment records of five or more painful scars.  Indeed, the February 2020 examiner found that only the posterior trunk scar was painful.  As such, a rating in excess of 20 percent is not warranted.  

The Board recognizes the Veteran’s belief that his painful scars warrant higher ratings under 38 C.F.R. § 4.118, DC 7804.  However, his SFW and GSW injuries resulted in scars, muscle damage, and loss of motion in the left shoulder.  Although he may report symptoms he experiences, such as pain, he has not been shown to have the requisite medical knowledge and expertise to determine the source of his symptomology.  The Board finds that the VA examiners’ determinations of which symptomology is attributable to which aspect of the Veteran’s disabilities under the rating criteria (i.e. scar residuals versus muscle damage) represent more competent and credible evidence regarding which ratings are appropriate for each aspect of his injuries.  As such, the Board finds that the quantification of painful scars by the VA examiners is highly probative.

Accordingly, a rating in excess of 10 percent prior to July 14, 2014, and in excess of 20 percent thereafter for scar residuals of the LUE and posterior trunk of the left trapezius is not warranted.

(b.) Compensable ratings prior to February 6, 2020, and a rating in excess of 20 percent thereafter for healed scars of the posterior trunk and left shoulder and arm area are denied.

The Veteran received two noncompensable ratings for healed scars of the left posterior trunk and left shoulder and arm area under the criteria of 38 C.F.R. § 4.118, DC 7801, prior to February 6, 2020.  Prior to the amended changes in August 13, 2018, under the criteria of Note (2) to DC 7801, the scars of the LUE and the posterior trunk scar are afforded separate ratings under DC 7801 as affecting separate zones of the body.  Prior to February 6, 2020, the total area of the scars of the LUE ranged from 0.5 sq. cm to 1.44 sq. cm.  As such, under the criteria of DC 7801, a noncompensable rating is warranted.  Prior to February 6, 2020, the total area of the posterior trunk scar ranged from 33 sq. cm to 36.75 sq. cm, warranting a noncompensable rating under the criteria of DC 7801.  Accordingly, entitlement to compensable ratings prior to February 6, 2020, for healed scars of the posterior trunk and left shoulder and arm area are not warranted.  

At the February 2020 examination, the approximate total area of the LUE affected with underlying tissue damage was 1.5 sq. cm.  The approximate total area of the posterior trunk affected was 75.4 sq. cm.  Following the August 13, 2018, amendments, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may be assigned under DC 7801.  See Note (2).  Accordingly, as the total area affected is 77 sq. cm, a 20 percent rating is warranted under the amended criteria of DC 7801 as of the date of the examination, February 6, 2020.  The Board notes that continuing to rate the scars under the pre-amended criteria would not afford the Veteran any advantage as only a 10 percent rating would be warranted under the pre-amended version of DC 7801.  Further, the February 2020 examination is the first time that it was factually ascertainable that the Veteran’s scars had increased in area such that a higher rating was warranted under either the pre-amended or amended criteria.  As such, the increase is not warranted at an earlier date.  Finally, a rating in excess of 20 percent is not warranted as an area of at least 465 sq. cm has not been shown to be affected by the Veteran’s scars at any point.  

Accordingly, compensable ratings prior to February 6, 2020, and in excess of 20 percent thereafter for healed scars of the posterior trunk and left shoulder and arm area are not warranted.  

The Board has considered whether rating the scars under other diagnostic codes relevant to scars would be more appropriate or advantageous to the Veteran.  However, although at the August 2015 examination there was determined to be one LUE scar that was superficial and non-linear, rather than deep and non-linear, rating the scar under DC 7802 for superficial and non-linear scars rather than under DC 7801 for deep and non-linear scars would not afford the Veteran any rating advantage.  Further, an additional rating would not be warranted under DC 7802 as the Veteran was only found to have one scar in the LUE at that examination and the scar cannot be rated under both DC 7801 and DC 7802.  Further, DC 7800 is not implicated, as the scars are not of the head, face, or neck, and rating under DC 7805 is not warranted as there are no additionally noted disabling effects not already compensated.  As such, alternative or additional ratings are not warranted (except as described below).

(c.) An initial compensable rating for scar, LUE area, is denied.

The Veteran was granted an additional noncompensable rating for scar of the LUE area, effective February 6, 2020, under 38 C.F.R. § 4.118, DC 7802.  Unlike the August 2015 examination results which found just one scar in the LUE that was superficial and non-linear, the February 2020 examiner observed one superficial and non-linear scar measuring a total area of 5 sq. cm and a deep and non-linear scar of 1.5 sq. cm in the LUE.  As such, an additional rating under DC 7802 for the superficial and non-linear scar is warranted as of the date of examination, February 6, 2020.  As noted above, an earlier effective date is not warranted as the Veteran only had one observed scar in the LUE at the prior examination which cannot be compensated twice.  Subsequent VA treatment records did not indicate that an additional rating was warranted prior to February 6, 2020, as well.  As the area of the scar is not 929 sq. cm or greater, the criteria for a 10 percent rating under DC 7802 have not been met.

Accordingly, a compensable rating for scar, LUE area, is not merited.

3. TDIU

As noted above, the Veteran is in receipt of a TDIU from May 20, 2015.  As such, the period on appeal before the Board is June 24, 2011 (the date of claim for increased ratings for the GSW residuals and scars), to May 19, 2015.  The Veteran’s service-connected post-traumatic stress disorder (PTSD) received a 100 percent schedular evaluation from October 17, 2011, to September 4, 2012.  A 100 percent schedular rating was also granted for PTSD from July 14, 2014.  The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot.  See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating).  The Veteran has already been granted SMC based on service connection for a disability with a 100 percent rating and another with a separate 60 percent rating from July 14, 2014, based on his PTSD total rating and the combined rating for his GSW/SFW residual disabilities.  

TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is one disability, it must be ratable at 60 percent or more, and if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a).  

As of June 24, 2011, the Veteran’s service-connected disabilities included PTSD at 70 percent; residual of GSW to Muscle Group II at 20 percent; residual of GSW to Muscle Group I at 10 percent; residual of SFW to Muscle Group VI at 10 percent; left shoulder limitation of motion at 10 percent; left jaw pain from SFW at 10 percent; painful scars of left shoulder, arm, and posterior trunk at 10 percent; healed scar, left posterior trunk at 0 percent; and healed scar, left shoulder and arm area at 0 percent, for a combined evaluation of 90 percent.  The Veteran was subsequently service-connected for right knee osteoarthritis, right knee instability, left knee osteoarthritis, and left knee instability during the appeal period.  As such, the schedular threshold for TDIU has been met throughout the entire appeal period.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16.

The term “substantially gainful occupation” is not defined in the rating schedule.  Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one.  31 Vet. App. 58 (2019).  In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue.  Id.  Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  Id.  Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

Concerning the economic component, the Veteran has a high school education and an Associate’s Degree in Business Administration.  He completed 40 hours of training to be a life and health insurance producer and obtained a license to sell life and health insurance policies.  He also completed a VA vocational rehabilitation and employment program.  He began an online course in health care administration but did not complete it.  His military occupational specialty was an armor tank crewman.  Following separation, he worked in positions as a security guard, warehouse clerk, front desk clerk, security supervisor, casino game technician, insurance sales agent, telemarketer, and health insurance telemarketer.  He reported in a resume that his duties in these various positions included helping solve problems in a crisis situation by keeping a secure environment; keeping accurate incident reports; working with counselors to address client problems; working with law enforcement; communicating with emotionally disturbed clients; preparing warehouse goods for shipment via truck; using a computer to organize and complete tasks for shipping; loading trucks with detailed items set for several destinations; making reservations and checking guests in and out of a hotel; completing billing records; handling credit card problems; keeping accurate records of guests; solving problems with customers and staff; organizing staff meetings; ensuring security staffing of a casino; receiving and delivering daily oral security reports; providing customer service; explaining machine functions and operating procedures; handling cash; completing tax forms; completing maintenance on slot machines; handling customer complaints; completing written reports; selling life and health insurance policies; communicating with insurance companies and clients; explaining existing insurance coverage to clients; transferring initial premiums from clients to insurance providers; making more than 250 daily outbound calls at a call center; using various types of computer software; communicating with timeshare owners and sales team; selling health insurance by telephone nationwide; and advising potential customers on different products.

Following a VA vocational rehabilitation assessment in September 2011, the Veteran was determined not to have a serious employment handicap.  He completed a vocational rehabilitation program and was subsequently employed by VA.  However, he has not provided any information regarding the nature of his position other than that it was an office environment.  It appears as though he may have worked in the scanning division.  He reportedly quit his job in January 2014 due to too many missed days.  A November 2013 VA memorandum reflected that the Veteran’s absence from duty had an adverse impact upon the operation efficiency of that service and that his usage of leave was an indication of sick leave abuse.  Therefore, medical documentation would be required to support future absences for personal illness and medical appointments.  

As such, from an economic perspective, the Veteran has the education, skills, work history, and vocational training to perform a variety of work, including security guard, security supervisor, warehouse clerk, front desk clerk, casino game technician, telemarketer, insurance sales agent, and general office worker.

Concerning the noneconomic component, the Veteran has undergone numerous VA examinations to determine the extent and severity of his service-connected disabilities.  Regarding the Veteran’s residuals of GSW/SFW muscle injuries, shoulder limitation of motion, and related scars, a September 2011 examiner concluded that they would limit the Veteran’s ability to work in a job where he had to work with his arms above his head and also limit his ability to do heavy physical jobs requiring lifting, carrying, pushing, and pulling.  A May 2012 examiner found there was no functional impact.  A July 2013 examiner stated that the Veteran would not be able to engage in overhead work or lifting heavy weights over the left shoulder.  In July 2014, an examiner concluded that the Veteran could not lift or raise his LUE above eye level because of pain, and could not push, such as in pushing a shopping cart.  

Regarding the Veteran’s PTSD, a September 2011 VA examiner found that it resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  A July 2014 examiner found that his PTSD resulted in total occupational and social impairment.  

Regarding the Veteran’s bilateral knee disabilities, a July 2013 examiner found no functional impact.  

Regarding the Veteran’s jaw disability, October 2011 and July 2013 VA examiners concluded there was no restriction or impairment of masticatory function and no functional impact caused by the disability.  

The Veteran has described the functional limitations caused by his service-connected disabilities.  In May 2013, he denied a history of any employment terminations.  In a December 2013 statement, the Veteran reported that he submitted notice to quit his VA position effective January 13, 2014, because of PTSD issues.  He felt that if he did not quit, he would be fired from the job for missing so much work.  He loved serving veterans but could not deal with symptoms of panic attacks and feeling on guard all day with his back to a door at work.  In December 2013, he told clinicians that he was not coping with his work environment well.  

In April 2014, the Veteran described being unable to lift 50 pounds since service.  He also had problems sitting for 8 hours straight due to shoulder pain which was part of the reason he quit former jobs of computer-based work.  He noted he was currently a full-time student taking classes online for short periods at a time.  He stated that even that task was challenging for him and that he had to pay back education benefits due to his inability to complete coursework.  He noted that standing for long periods also hurt his shoulder and his bilateral knees.  He enjoyed doing manual labor but was unable to do it due to his loss of strength such that he could hardly lift 10 pounds repeatedly.  

At a July 2014 examination, the Veteran reported that he initially did very well at his VA job but then grew to hate his bosses, have panic attacks on a daily basis, lose focus after an hour, and get easily upset.  His anxiety stemmed from people standing behind him or walking past him.  

As such, from a noneconomic perspective, the Veteran’s service-connected disabilities impact his ability to perform work that requires lifting, carrying, pushing, and pulling; prolonged sitting or standing; and working with others in a close environment.

(a.) Entitlement to TDIU, effective May 14, 2013, is granted.

Based on the foregoing, the Board finds that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities from May 14, 2013.    

The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  See Ray, supra.  VA examiners did not find that the Veteran would be limited in being able to engage in bending, standing, walking, climbing, typing, auditory, or visual abilities.  As such, he would be able to engage in his previous work as a security guard, security supervisor, front desk clerk, telemarketer, insurance sales agent, or general office worker.  The Veteran stated that he had difficulty working for 8 hours straight on a computer or sitting for prolonged periods.  However, some of the sedentary positions he has previously held do not require constant work on a computer nor constant sitting (i.e. front desk clerk).  Although he would be limited from working in jobs that required constant sitting and use of his LUE, he would not be precluded from all jobs requiring intermittent use of a computer or frequent sitting.  

The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  See Ray, supra.  It is clear that the Veteran experienced difficulty working with others and handling workplace stress.  He described frequent panic attacks and hypervigilance that interfered with regular attendance at work, as evidenced by the absence report from his VA position.  As such, he would be precluded from his earlier work as a security guard and security supervisor for safety reasons and might have difficulty engaging in work that required constant interaction with personnel or clients.  

In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.”  Withers v. Wilkie, 30 Vet. App. 139 (2018).  Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.”  Id. at 149-150.  In the Veteran’s case, there is some evidence that even the sedentary work for which he has adequate training and skills (i.e., telemarketing, insurance sales, general office work) may be affected by his physical and/or mental impairments.  

Based on the foregoing, the Board finds that the combination of the physical and mental functional impairments caused by the Veteran’s service-connected disabilities rendered him unable to maintain substantially gainful employment.  Prior to May 2013, he was employed full-time and it does not appear as though he experienced difficulties maintaining employment.  He was found not to have a serious employment handicap and VA examiners had only found that the Veteran’s PTSD caused occasional decrease in work efficiency.  Although he held a variety of different jobs, he himself stated that he had not been terminated from any of those positions.  He appeared to first experience difficulties meeting the requirements of his VA position beginning in May 2013.  He subsequently had numerous absences such that he was warned about the adverse impact they were having on operational efficiency.  

Affording the Veteran the benefit of the doubt, the Board finds that although he was employed, the time period from May 2013 to January 2014 when he ceased all employment is best described as working in a protected environment.  The Board finds the Veteran’s numerous absences for sick leave which he has described as necessary to manage his psychiatric symptoms and to attend medical appointments is evidence of unemployability such that a TDIU is warranted.  

The Veteran has not provided any information about his VA employment other than the memorandum discussing his frequent absences.  As such, the Board does not have any evidence that his service-connected disabilities necessitated frequent absences or accomodation prior to the first noted date of frequent absenteeism, May 14, 2013.  Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim.  Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).  As such, the first evidence of interference with employability was May 14, 2013.  

Therefore, affording the Veteran the benefit of the doubt, the Board finds that he is entitled to TDIU, effective May 14, 2013.

4. Other Considerations

The Board has considered whether SMC is warranted for any part of the appeal period.  However, during the Veteran’s 100 percent rating for PTSD from October 17, 2011, to September 4, 2012, he did not have another service-connected disability of 60 percent or more.  As such, SMC is not warranted during that period.  

Further, the Veteran is in receipt of a 100 percent rating for PTSD from July 14, 2014, and has already been granted SMC based on one service-connected disability of 100 percent and another disability of 60 percent or more from that date.  

TDIU is granted herein, effective May 14, 2013, representing a 100 percent rating.  However, because TDIU is merely a rating, not an actual disability, and because it can be assigned based upon multiple service-connected disabilities, it does not always satisfy a 100 percent element for SMC.  Rather, to qualify as a single disability rated as total, the Court held that an award of TDIU must be based on one service-connected disability standing alone.  See Buie v. Shinseki, 24 Vet. App. 242 (2010).

The TDIU granted herein is based on a combination of the Veteran’s physical and mental service-connected disabilities.  The Board finds that none of his service-connected disabilities standing on their own warrant TDIU from May 14, 2013, to July 14, 2014.  

As noted above, from an economic perspective, the Veteran has the education, skills, work history, and vocational training to perform a variety of work, including security guard, security supervisor, warehouse clerk, front desk clerk, casino game technician, telemarketer, insurance sales agent, and general office worker.  Although his PTSD would likely preclude security guard or supervisor work due to safety concerns, his PTSD alone would not preclude all other positions.  It is unlikely the Veteran would have been able to engage in positions which required constant contact with others, but positions with limited social contact would not be precluded.  Warehouse clerk, casino game technician, or general office worker, for example, would not be precluded by his PTSD symptoms.  As such, in light of the Veteran’s educational background, skills, and training, he would not be precluded from engaging in substantially gainful activity on the basis of his PTSD alone.  

Similarly, his GSW/SFW residuals disabilities (considered as one disability from a common etiology) would not preclude employment on their own.  The Veteran’s previous jobs of warehouse clerk, front desk clerk, telemarketer, insurance sales agent, and general office worker, and jobs of a similar nature would not be precluded by the Veteran’s LUE weakness and pain.  Although it is unlikely that he could have engaged in positions requiring him to constantly use his LUE, he could have maintained positions which required frequent or occasional use of his LUE.  As such, in light of the Veteran’s educational background, skills, and training, he would not be precluded from engaging in substantially gainful activity on the basis of his GSW/SFW residuals alone.  

Examiners determined there would be no functional impact from the Veteran’s other service-connected disabilities.  As such, they would not preclude employment on their own.  

As none of the Veteran’s service-connected disabilities would merit entitlement to TDIU on their own from May 14, 2013, to July 14, 2014, SMC is not warranted for that timeframe.  Accordingly, SMC is not warranted at any time during the appeal period.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  Doucette v. Shulkin, 28 Vet. App. at 366 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 

 

Shereen M. Marcus

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Rachel E. Jensen, 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.