Citation Nr: 21003997 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 09-36 155 DATE: January 25, 2021 ORDER A disability rating greater than 20 percent for residuals of shell fragment wound of left leg is denied. A disability rating greater than 10 percent for residuals of shell fragment wound of left thigh is denied. A 30 percent, but no higher, disability rating for residuals of shell fragment wounds of right thigh, knee, and calf is granted. A disability rating greater than 20 percent for residuals of retained foreign body in left lung is denied. FINDINGS OF FACT 1. Throughout the rating period, the Veteran’s residuals of shell fragment wound of left leg involving Muscle Group XII are manifested primarily by a penetrating wound of left leg, and are productive of moderately severe muscle injury; severe muscle injury of left leg is not demonstrated. 2. Throughout the rating period, the Veteran’s residuals of shell fragment wound of left thigh involving Muscle Group XIII are manifested primarily by a penetrating wound of left thigh, full motion of left hip, complaints of pain, and are productive of moderate muscle injury; moderately severe muscle injury of left thigh is not demonstrated. 3. Throughout the rating period, the Veteran’s residuals of shell fragment wounds of right thigh, knee, and calf involving Muscle Group XIV and additional muscle groups are manifested primarily by penetrating wounds of right thigh and calf, full motion of right hip, complaints of pain, and are productive of moderate muscle injuries; moderately severe muscle injury of right thigh, knee, and calf is not demonstrated. 4. Throughout the rating period, the Veteran’s residuals of retained foreign body in left lung are manifested by a through-and-through wound of chest wall, retained shrapnel in the left lung base, and complaints of intermittent chest pain; results of pulmonary function testing are forced vital capacity (FVC) of 82 percent of predicted, forced expiratory volume in one second (FEV-1) of 83 percent predicted, and diffusion capacity of the lung for carbon monoxide by a single breath method of 81 percent predicted. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for residuals of shell fragment wound of left leg involving Muscle Group XII are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5312. 2. The criteria for a disability rating greater than 10 percent for residuals of shell fragment wound of left thigh involving Muscle Group XIII are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5313. 3. The criteria for a 30 percent, but no higher, disability rating for residuals of shell fragment wounds of right thigh, knee, and calf are met or nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5314. 4. The criteria for a disability rating greater than 20 percent for residuals of retained foreign body in left lung involving Muscle Group XXI and traumatic chest wall defect are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5321 (2020); 38 C.F.R. § 4.97, Diagnostic Code 6843. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 to April 1971, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal. He timely appealed these matters from an August 2008 rating decision. These matters involve service-connected residuals of shell fragment wounds of each lower extremity and a retained foreign body in the left lung. Effective October 23, 2008, a decision review officer assigned a separate 30 percent evaluation for all scar residuals of shell fragment wounds, on the basis of five or more painful scars and no unstable scars. Because higher evaluations are available for residuals of shell fragment wounds of each lower extremity and for retained foreign body in left lung throughout the appeal period, and the Veteran is presumed to seek the maximum available benefit for disability, these matters remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board remanded these matters for further development in March 2016 and in September 2018. In June 2020, a decision review officer increased the evaluation for residuals of shell fragment wound of left thigh to 10 percent, effective July 10, 2012. The Board again remanded these matters in September 2020. In October 2020, the Agency of Original Jurisdiction (AOJ) assigned an earlier effective date of January 24, 2008, for the 10 percent evaluation for residuals of shell fragment wound of left thigh. Subsequently, these matters were returned to the Board. See AB, supra. Here, substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not alleged that his service-connected residuals of shell fragment wounds of each lower extremity and the left lung prevented him from obtaining or maintaining substantially gainful employment. No further action regarding unemployability is required. Rice v. Shinseki, 22 Vet. App. 447 (2009). Ratings Historically, the Veteran sustained multiple shrapnel wounds and was hospitalized in Vietnam in November 1969 for about two weeks. He underwent debridement and irrigation on the day of injury, with exploratory laparotomy with overseeing of a perforated ileum. Delayed primary closure was done the following week. Convalescence was uncomplicated, and the Veteran stayed approximately thirty days in rehabilitation before returning to duty. He again was hospitalized from January 29, 1970, to February 4, 1970. Following examination in February 1970, diagnoses included wounds, multiple, fragment, all extremities; and no major artery or nerve involvement. The Veteran filed claims for increased rating on January 24, 2008. As noted above, this appeal pertains solely to evaluations for service-connected residuals of shell fragment wounds of each lower extremity and the retained foreign body in the left lung. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations at 38 C.F.R. § 4.55 provide that (a) A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. (b) For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (Diagnostic Codes 5301 through 5306); 3 muscle groups for the forearm and hand (Diagnostic Codes 5307 through 5309); 3 muscle groups for the foot and leg (Diagnostic Codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (Diagnostic Codes 5313 through 5318); and 5 muscle groups for the torso and neck (Diagnostic Codes 5319 through 5323). (c) There will be no rating assigned for muscle groups which act upon an ankylosed joint, with the following exceptions: (1) In the case of an ankylosed knee, if muscle group XIII is disabled, it will be rated, but at the next lower level than that which would otherwise be assigned. (2) In the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated. (d) The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. (e) For compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. (f) For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of § 4.25. Regulations at 38 C.F.R. § 4.56 provide (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. (d) Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe as follows: (1) Slight disability of muscles--(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles--(i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. Residuals of Shell Fragment Wound of Left Leg The Veteran’s service-connected residuals of shell fragment wound of left leg currently are rated throughout the rating period as 20 percent disabling under Diagnostic Code 5312, pertaining to muscle injuries of the foot and leg. A 20 percent rating is warranted for moderately severe injury to Muscle Group XII (anterior muscles of the leg). A 30 percent rating requires severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5312. During a May 2008 VA examination, the Veteran reported that he had a scar over the left knee with shrapnel just above his left knee. He had sensations of numbness around the lateral left knee, with pain occasionally shooting down to the left big toe. He reported constant pain in this region, which was moderate in intensity; and that pain limited his activities during flare-ups, which were irregular and lasted from fifteen-to-twenty seconds. The Veteran was restricted from doing any heavy exertion with pressure on the left leg. Examination in May 2008 revealed that the Veteran walked with a mild antalgic gait. The scar on the proximal left knee just above the patella measured one centimeter and was slightly tender, nonadherent, non-depressed, well-nourished, non-ulcerated, and mildly disfiguring. There were full ranges of motion of the left knee and no pain with manipulation of the knee, no pain with movement of the knee, and no obvious laxity of the knee. In December 2008, the Veteran contended that there was severe muscle injury of his left leg. In July 2012, he acknowledged chronic left leg and knee pain. A February 2013 VA examination report reveals a diagnosis of osteoarthritis of left knee. Ranges of motion of left knee were to 120 degrees on flexion and to 0 degrees on extension. There was no objective evidence of painful motion. Muscle strength testing was 5/5 (normal strength). Joint stability testing was normal. A July 2017 VA examination report reveals pain with prolonged standing and objective evidence of crepitus. Factors contributing to disability included less movement than normal. There was no reduction in muscle strength of left knee. There was no muscle atrophy. There was no ankylosis. Joint stability tests were normal. In a February 2018 addendum, a VA examiner indicated that there was no evidence of any knee joint injury from the shell fragment wound of left leg; and that current osteoarthritis of left knee was more consistent with age and physiologic “wear and tear,” which was a natural progression. The osteoarthritis of left knee neither was caused by, nor secondary to, nor aggravated beyond natural progression by service-connected residuals of shell fragment wound of left leg sustained in active service. A VA examiner in March 2018 noted that the Veteran had retired and that he had a sedentary lifestyle. He was able to perform activities of daily living with no restrictions, unless he was having pain in his left leg. On muscle injury examination in March 2018, the examiner found no evidence of fascial defects associated with any muscle injury. There were neither cardinal signs nor symptoms of muscle disability involving the left leg. Muscle strength testing was normal. Here, the objective evidence is against a disability rating greater than 20 percent for residuals of shell fragment wound of left leg. No more than a moderately severe injury of Muscle Group XII involving the Veteran’s left leg is demonstrated. All through-and-through or deep, penetrating wounds by a single bullet or shell fragment are considered to be at least a moderate muscle injury. See 38 C.F.R. § 4.56. While the Veteran reported chronic left leg pain and flare-ups, the evidence does not reveal shattering bone fracture or open comminuted fracture. Nor does the evidence reveal consistent complaints of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. Severe muscle disability is not demonstrated. The Board notes that service connection for disability of the left knee was denied in a September 2018 Board decision, consistent with the medical evidence attributing impairments of that joint to nonservice-connected factors. Left knee manifestations are therefore not considered in rating the current muscle disability. The preponderance of evidence, therefore, is against a disability rating greater than the currently assigned 20 percent rating under Diagnostic Code 5312 for residuals of shell fragment wound of left leg. Residuals of Shell Fragment Wound of Left Thigh The Veteran’s service-connected residuals of shell fragment wound of left thigh currently are rated throughout the rating period as 10 percent disabling under Diagnostic Code 5313, based on evidence showing moderate muscle injury of thigh. A 10 percent rating is warranted for moderate injury to Muscle Group XIII (posterior thigh group, hamstring complex of 2-joint muscles). A 30 percent rating requires moderately severe injury. A 40 percent rating requires severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5313. During a May 2008 VA examination, the Veteran reported that he had a scar on the left thigh from a shell fragment wound. He reported a Level 7 on a scale of 10 as to pain intensity in the region, which flared-up periodically and irregularly. He reported increased pain when driving, and that he sometimes had to limp because of left thigh pain. Examination in May 2008 revealed a 5-centimeter linear scar across the posterior left thigh, which was slightly tender, nonadherent, non-depressed, well-nourished, non-ulcerated, and mildly disfiguring. The examiner noted that pain had major functional impact. A July 2017 VA examination report reveals a medical history of “crampy” pain in the left hip and thigh. The pain lasted for five minutes; triggers were unknown. The Veteran was sedentary; and limited from squatting, walking, and heavy lifting. He reported no flare-ups. Examination in July 2017 revealed that ranges of motion of the left hip were normal. There was no reduction in muscle strength of the left hip. There was no ankylosis. The condition did not impact the Veteran’s ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). A VA examiner in March 2018 noted that the Veteran was able to perform activities of daily living with no restrictions regarding residuals of shell fragment wound of left thigh. On muscle injury examination in March 2018, the examiner found no evidence of fascial defects associated with any muscle injury. There were neither cardinal signs nor symptoms of muscle disability involving the left thigh. Muscle strength testing was normal. Here, the objective evidence is against a disability rating greater than 10 percent for residuals of shell fragment wound of left thigh. No more than a moderate injury of Muscle Group XIII involving the Veteran’s left thigh is demonstrated. In the absence of any of the cardinal signs or symptoms of muscle disability, no increased evaluation can be granted. While the description of the injury warranted assignment of evaluation for moderate disability, current impairment does not permit a higher evaluation. Tests of strength and endurance do not demonstrate impairment. The preponderance of evidence, therefore, is against a disability rating greater than the currently assigned 10 percent rating under Diagnostic Code 5313 for residuals of shell fragment wound of left thigh. Residuals of Shell Fragment Wounds of Right Thigh, Knee, and Calf The Veteran’s service-connected residuals of shell fragment wounds of right thigh, knee, and calf currently are rated throughout the rating period as 10 percent disabling under Diagnostic Code 5314, based on evidence showing moderate muscle injury. A 10 percent rating is warranted for moderate injury to Muscle Group XIV (anterior thigh group). A 30 percent rating requires moderately severe injury. A 40 percent rating requires severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5314. The provisions of Diagnostic Code 5314 provide that the function of Muscle Group XIV is the extension of knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat’s) band, acting with Muscle Group XVII in postural support of body; and acting with hamstrings in synchronizing hip and knee. This muscle group includes the sartorius, rectus femoris, vastus externus, vastus intermedius, vastus internus, and tensor vaginae femoris. 38 C.F.R. § 4.73, Diagnostic Code 5314. During a May 2008 VA examination, the Veteran reported that he sustained shell fragment wounds on the right side. A punctate lesion was noted with no pain. The Veteran reported occasional cramping in the right lateral thigh over the site of this area when walking or driving more than an hour. He was not limited from any home or work activities. The Veteran also reported a shell fragment wound in the right knee, as well as discomfort, which was a constant Level 7 on a scale of 10. He also had a meniscal tear in the right knee, which incurred from an injury after service. He was able to walk without limitation, but he could neither jog nor run. The Veteran reported a shell fragment wound in the right calf, which caused discomfort in the medial calf. He had numbness in that region, but no pain, and no limitation of activity. Scars on the right medial calf measured 5 centimeters by 1 centimeter, and 3 centimeters by 1 centimeter. Both scars were slightly depressed, well-nourished, non-ulcerated, mildly tender, and mildly disfiguring. There was also a 6-centimeter by 1-centimeter scar across the right lower leg. Examination in May 2008 revealed decreased sensation to light touch in the right medial lower leg, extending from the knee distally to the medial malleolus. There were full ranges of motion of the right knee and no pain with manipulation of the knee, no pain with movement of the knee, and no obvious laxity of the knee. The examiner noted that pain had major functional impact. In December 2008, the Veteran contended that there was moderately severe muscle injury of his right thigh, knee, and calf. In March 2010, the Veteran reported that his right knee pain was sharp and intermittent. He reported associated weakness, fatigue, instability, lack of endurance, stiffness, locking, and swelling. He also reported a meniscal tear from a work-related injury, and noted there was no work limitation. He reported right thigh pain that was sharp and achy, intermittent, and a Level 7 on a scale of 10. There was associated weakness, fatigue, lack of endurance, and stiffness, which was worse with driving and walking and stooping; he reported moderate flare-ups during long drives. Examination in March 2010 revealed that muscle strength to right lower extremity was 5/5. There was tactile sensory with tingling sensation to right medial calf. Ranges of motion of right knee were to 100 degrees on flexion, and to 0 degrees on extension. The examiner noted an absence of pain, weakness, fatigability, incoordination, and instability. There was no loss of function with repetition. In December 2010, the Veteran reported that pain in his right thigh had increased in severity over time. A February 2013 VA examination report revealed a diagnosis of torn meniscus of right knee, which occurred after service in 1983. The Veteran underwent right knee surgery in 1989 and had a right total knee replacement in 2012. Residuals of right total knee replacement included intermediate degrees of weakness, pain, or limited motion. Muscle strength testing was 5/5 (normal strength). Joint stability testing was normal. The Veteran had difficulty climbing stairs and kneeling. A July 2017 VA examination report revealed a medical history of “crampy” pain in the right hip and thigh. The pain lasted for five minutes; triggers were unknown. The Veteran was sedentary; and limited from squatting, walking, and heavy lifting. He reported no flare-ups. Examination in July 2017 revealed that ranges of motion of the right hip were normal. There was no reduction in muscle strength of the right hip. There was no ankylosis. The condition did not impact the Veteran’s ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). Another VA examiner in July 2017 noted that the Veteran was able to walk straighter since having a right total knee replacement. There was pain with prolonged standing. The Veteran used no assistive device and reported no flare-ups. In a February 2018 addendum, a VA examiner indicated that there was no evidence of any knee joint injury from the shell fragment wounds of right thigh, knee, and calf; and that current right total knee replacement neither was caused by, nor secondary to, nor aggravated beyond natural progression by service-connected residuals of shell fragment wounds of right thigh, knee, and calf sustained in active service. A VA examiner in March 2018 noted that the Veteran was able to perform activities of daily living with no restrictions regarding residuals of shell fragment wounds of right thigh, knee, and calf. On muscle injury examination in March 2018, the examiner found no evidence of fascial defects associated with any muscle injury. There were neither cardinal signs nor symptoms of muscle disability involving the right thigh, knee, and calf. Muscle strength testing was normal. Here, the objective evidence reveals no more than a moderate injury of Muscle Group XIV involving the Veteran’s right thigh, knee, and calf. As noted above, intermediate degrees of weakness, pain, and limited motion were associated with the Veteran’s right total knee replacement and not with any muscle group injury resulting from shell fragment wounds in active service. The Board notes that no muscle group has been identified for the shell fragment wound of the Veteran’s right calf. In this regard, penetrating wounds by a single bullet or shell fragment are considered to be at least a moderate muscle injury. See 38 C.F.R. § 4.56. That being the case, the rating for Muscle Group XIV should be increased by one level and used as the combined rating for the affected muscle groups. 38 C.F.R. § 4.55(e). Accordingly, a 30 percent, but no higher, disability rating throughout the rating period for moderately severe muscle injury is warranted under Diagnostic Code 5314; such combined rating adequately compensates the Veteran’s pain from residuals of shell fragment wounds of right thigh, knee, and calf. Residuals of Retained Foreign Body in Left Lung The Veteran’s service-connected residuals of retained foreign body in left lung currently are rated throughout the rating period as 20 percent disabling under Diagnostic Code 5321, based on evidence showing severe or moderately severe muscle injury. A 20 percent rating for moderately severe or severe injury to Muscle Group XXI (muscles of respiration) is the maximum rating under this diagnostic code. 38 C.F.R. § 4.73, Diagnostic Code 5321. Alternatively, Diagnostic Codes 6840 to 6845 pertaining to traumatic chest wall defect, pneumothorax, hernia, etc., are rated under a general rating formula for restrictive lung disease. A 30 percent rating is warranted if the following findings are demonstrated: a forced expiratory volume in one second (FEV-1) of 56 to 70 percent predicted, or; a force expiratory volume in one second to forced vital capacity ratio (FEV-1/forced ventilatory capacity (FVC)) of 56 to 70 percent, or; a diffusion capacity of carbon monoxide, single breath (DLCO (SB)) of 56 to 65 percent predicted. A 60 percent rating is warranted if the following findings are demonstrated: an FEV-1 of 40 to 55 percent predicted, or; a FEV-1/FVC of 40 to 55 percent, or; a DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). The maximum 100 percent rating is warranted if the following findings are demonstrated: an FEV-1 of less than 40 percent of predicted value or; a FEV-1/FVC of less than 40 percent, or; a DLCO (SB) of less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. See 38 C.F.R. § 4.97, Diagnostic Codes 6840 to 6845. Note (1) following revised Diagnostic Codes 6840 to 6845 provides for a 100 percent rating for pleurisy with emphysema, with or without pleurocutaneous fistula, until resolved. Note (2) states that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for 3 months from the first day of the month after hospital discharge. Note (3) indicates that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. Disabling injuries of the shoulder girdles muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (muscles of respiration, Diagnostic Code 5321), however, will not be separately rated. Chest X-rays taken in July 1976 reveal a metallic shrapnel particle lodged in the left lung base in the middle lobe. Examination of the chest at that time was normal and without evidence of deformity or dyspnea; all sounds were normal. During a May 2008 VA examination, the Veteran reported that a shell fragment had penetrated the base of his left lung. He reported pain in the inferior aspect of the lung and ribcage, which flared-up periodically. He had pain when he tried to jog or run; he described the intensity as a Level 10 on a scale of 10. He reported flare-ups occurring three times a month and pain lasting for 15 seconds, at which time he had to sit down; he could not do any activity. Currently, he did not have a lung problem with coughing, shortness of breath, wheezing, or other lung issues. Examination in May 2008 revealed a punctate scar across the left lateral lower ribcage, which was nontender, nonadherent, non-depressed, well-nourished, non-ulcerated, and mildly disfiguring. The examiner noted that pain had major functional impact. Chest X-rays taken in July 2012 revealed numerous metallic-type densities over the left chest wall and back, some of which clearly lay within soft tissues. A tiny one projected at the left lung base at lingula. Lungs and pleural spaces were clear. A July 2017 VA examination report included a diagnosis of retained 2-millimeter foreign body at base of left lung. The Veteran’s medical history revealed no treatment in service and no current treatment. The Veteran did not require medications. Pulmonary function testing in August 2017, post-bronchodilator, revealed forced vital capacity (FVC) of 89 percent predicted, forced expiratory volume in one second (FEV-1) of 95 percent predicted, and an FEV-1/FVC ratio of 106 percent predicted. Diffusion capacity of the lung for carbon monoxide by a single breath (DLCO (SB)) was 81 percent predicted. The Veteran’s respiratory condition did not impact his ability to work. The Veteran underwent a VA respiratory examination in December 2019. The diagnosis was bullet fragments left lung, retained foreign body. X-rays revealed no acute cardiopulmonary abnormality. Pulmonary function testing in December 2019, post-bronchodilator, revealed FVC of 82 percent predicted, FEV-1 of 83 percent predicted, and an FEV-1/FVC ratio of 101 percent predicted. DLCO (SB) was not indicated for Veteran’s condition. The Veteran’s respiratory condition did not impact his ability to work. In a May 2020 addendum, the examiner indicated that the Veteran had intermittent left chest pain. Muscle Group XXI (muscles of respiration) was identified. The examiner opined that the Veteran’s muscle injury to left lung had no effect on his ability to function in an occupational environment. Here, throughout the rating period, the evidence reveals moderately severe injury of Muscle Group XXI of the Veteran’s thoracic spine. See 38 C.F.R. § 4.56. The Veteran has complained of intermittent left chest pain. As noted above, the currently assigned 20 percent rating is the maximum allowable under 38 C.F.R. § 4.73, Diagnostic Code 5321. If a Veteran is in receipt of the maximum disability rating available under a diagnostic code for limitation of motion, consideration of functional loss due to pain is not required. Johnson v. Brown, 10 Vet. App. 80 (1997). Hence, an increased rating under Diagnostic Code 5321 is not warranted. In considering alternative criteria, a traumatic chest wall defect provides for at least a 20 percent rating for residuals of gunshot wounds of the pleural cavity with bullet or missile retained in lung. See 38 C.F.R. § 4.97, Diagnostic Codes 6840 to 6845, Note 3. However, results of pulmonary function testing in August 2017 and in December 2019 do not meet criteria for an increased rating under the general rating formula for restrictive lung disease. Respiratory function impairment, either as a cause or permanent aggravation, due primarily to the retained shrapnel has not been demonstrated. At no time does evidence reflect that an intercostal muscle strain or muscle damage warrants a disability rating in excess of 20 percent. See Diagnostic Codes 6840-6845. The preponderance of evidence, therefore, is against a disability rating greater than the currently assigned 20 percent rating under any diagnostic code for residuals of retained foreign body in left lung. Lastly, the Board notes that the Veteran has been awarded a separate rating for residuals of shell fragment wound of left upper back under Diagnostic Code 5301, involving extrinsic muscles of shoulder girdle. The Notes following Diagnostic Codes 6840 to 6845 provide that injuries to Muscle Group XXI should not be separately rated. Hence, Diagnostic Code 5321 should no longer be used. Rather, Diagnostic Code 6843 for traumatic chest wall defect is applicable for the currently assigned 20 percent rating for residuals of retained foreign body in left lung. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.