Citation Nr: 21063793 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 14-07 071 DATE: October 15, 2021 ORDER An initial compensable rating status post-stab wound to the left chest wall is denied. An initial rating in excess of 10 percent prior to December 9, 2020, and a rating in excess of 20 percent beginning December 9, 2020, for left chest scars associated with the left chest wall stab wound is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for residual scar, status post-ganglion cyst excision of the right hand is remanded. FINDINGS OF FACT 1. The Veteran's service-connected status post-stab wound to the left chest wall has not more nearly approximated a moderate (or more severe) Muscle Group XXI injury at any point in the appeal period. 2. For the period prior to December 9, 2020, the Veteran's service-connected left chest scars associated with the left chest wall stab wound were characterized as linear and tender to palpation, but were not unstable or deep, did not result in limited function, and were not manifested by more than two scars. 3. For the period beginning December 9, 2020, the Veteran's service-connected left chest scars associated with the left chest wall stab wound have been characterized as linear and tender to palpation, but are not unstable or deep, do not result in limited function, and are not manifested by five or more scars. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for status post-stab wound to the left chest wall have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.56, 4.73, Diagnostic Code 5321. 2. The criteria for an initial rating in excess of 10 percent prior to December 9, 2020, and a rating in excess of 20 percent beginning December 9, 2020, for left chest scars associated with the left chest wall stab wound have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to December 1994. In November 2017, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. These issues were before the Board in March 2018 and October 2019 when they were remanded for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Rating for Status Post-Stab Wound to the Left Chest Wall The Veteran is in receipt of an initial noncompensable rating for status post-stab wound to the left chest wall under Diagnostic Code 5321, effective July 18, 2011. Under Diagnostic Code 5321, a noncompensable rating is assigned for a slight disability, 10 percent is assigned for a moderate disability, and a maximum 20 percent is assigned for a severe or moderately severe disability of muscle group XXI, muscles of respiration and thoracic muscle group. 38 C.F.R. § 4.73, Diagnostic Code 5321. A slight muscle disability is defined as a simple wound of the muscle without debridement or infection. Such a wound should have a history of brief treatment and return to duty, exhibiting healing with good functional results, and no cardinal signs and symptoms. Residuals include minimal scar, no impairment of function, no retained metallic fragments, and no evidence of fascial defect, atrophy, or impaired tonus. 38 C.F.R. § 4.56(d)(1). A moderate muscle disability is defined as a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Such a wound should result in consistent complaint of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Residuals include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A through and through injury with muscle damage shall be evaluated at no less than a moderate disability. 38 C.F.R. § 4.56(b). A moderately severe muscle disability is defined as a through and through or deep penetrating wound by a small high velocity missile or a large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Such a wound should have a record of prolonged hospitalization for treatment, a record of consistent complaint of cardinal signs and symptoms, and, if present, evidence of inability to keep up with work requirements. Residuals include 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 the sound side, and tests of strength and endurance with positive evidence of impairment compared with the sound side. 38 C.F.R. § 4.56(d)(3). A severe muscle disability is defined as a through and through or deep penetrating wound due to a high velocity missile or large and 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. Such a wound should have a record of prolonged hospitalization for treatment, a record of consistent complaint of cardinal signs and symptoms worse than those shown for a moderately severe disability, and, if present, evidence of inability to keep up with work requirements. Residuals include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track; palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; abnormal swelling and hardening in muscle contraction; and tests of strength, endurance, or coordinated movements indicating severe impairment of function compared to the sound side. A severe disability can also be shown by x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to bone; diminished muscle excitability to pulsed electrical current; visible or measurable atrophy; adaptive contraction of an opposing muscle group; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). An open comminuted fracture with muscle or tendon damage will be evaluated as severe unless muscle damage is minimal. 38 C.F.R. § 4.56(a). Ratings under muscle disability codes generally require reference to the service treatment records for the type of wound that gave rise to the disability. Here, the Board finds the preponderance of evidence is against a finding that the Veteran's service-connected Muscle Group XXI injury resulting from a stab wound has more nearly approximated a moderate muscle injury or more severe level of disability at any point in the appeal period. Rather, the preponderance of evidence establishes the injury is entirely consistent with the definition of a slight muscle injury under VA regulation. Service treatment records (STRs) show the Veteran sustained a single penetrating stab wound to the chest that injured the intercostal muscle in March 1994. Exploratory laparotomy revealed no blood within the abdominal cavity; liver, stomach and spleen were intact. Lacerations of the epicardial fat pad and the diaphragm were noted. Chest X-ray revealed post-operative changes but no acute lung process. Following service, the Veteran underwent a VA muscle injuries examination in 2012. He complained of mild pain upon taking deep breaths. He reported the pain occurred only occasionally. On examination, no tenderness was found in the area of the wound. Chest X-rays studies were normal. The examiner stated the injury in service affected Muscle Group XXI, the muscles of respiration, thoracic muscle group. There was no history of rupture of the diaphragm with herniation. No fascial defects were noted. Muscle substance and function were not affected. There were no cardinal signs or symptoms of muscle disability (including loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement). The examiner opined the injury did not impact the Veteran's ability to work. An August 2013 private treatment record notes the Veteran's complaints of intermittent chest pain (about twice a week for several months) without exacerbating factors. Examination revealed no costochondral tenderness. Chest was normal. Lungs were clear to auscultation bilaterally. The assessment was unspecified chest pain. No additional tests or studies were conducted. The treatment provider noted the Veteran's complaints were atypical for cardiac etiology. He noted the history of the stab wound and indicated the symptoms were more consistent with an inflammatory etiology related to the stab wound. A March 2016 VA muscle injuries Disability Benefits Questionnaire (DBQ) notes the Veteran's history of stab wound to the chest without any injury to organs, only a small amount of muscle laceration. No significant internal damage was appreciated at the time; there was no lung injury. On examination, no cardinal signs or symptoms of muscle disability were shown. The examiner opined the injury did not cause any functional impact or impact the Veteran's ability to work. A March 2016 VA respiratory conditions DBQ notes there was no respiratory involvement at the time of the Veteran's injury in service. At the time of examination, the Veteran denied shortness of breath. The examiner opined the Veteran had no respiratory involvement from the stab wound, and injury did not impact the Veteran's ability to work. In November 2017, the Veteran testified he had chest pain and "time(s) when it [was] hard to breathe." He denied receiving any treatment for his complaints. A September 2018 VA muscle injuries DBQ notes the Veteran's report of having respiratory issues "but not currently." He also complained of chest pain that comes and goes. Examination revealed no fascial defects. Muscle substance and function were not affected. There were no cardinal signs or symptoms of muscle disability. The Veteran reported losing 2-4 weeks of work in the past 12 months because chest pain hindered his ability to be productive at work. A December 4, 2020, VA muscle injuries DBQ notes the Veteran's history of stab wound in service. On examination, there were no fascial defects. Muscle substance and function were not affected. Findings of consistent loss of power, weakness, and fatigue and/or pain, in the left side of Muscle Group XXI was noted. On December 9, 2020, the Veteran underwent another VA muscle injuries examination. The examiner noted the Veteran's complaints of pain, times when his chest was sore, and times when he had difficulty breathing. Pain was localized to the area of the chest scar. The Veteran stated his condition had stayed the same since service. The examiner indicated the Veteran's injury affected Muscle Group XXI, left side. On examination, there were no fascial defects. Muscle substance and function were not affected. Occasional fatigue and/or pain in Muscle Group XXI, left side, was noted. No other cardinal signs or symptoms of muscle injury were shown. The examiner opined the injury did not impact the Veteran's ability to work. A December 2020 VA respiratory conditions DBQ notes the Veteran's complaints of pain, times when his chest was sore, and times when he had difficulty breathing. Pain was localized to the area of the chest scar. The Veteran stated his condition had stayed the same since service. The examination report notes that March 2021 chest X-ray studies revealed no cardiopulmonary disease. March 2021 pulmonary function tests were normal. The examiner opined the Veteran did not have a respiratory disability that impacted his ability to work. In April 2021, a VA medical addendum opinion was sought to address specifically the Veteran's complaints of chest pain and problems breathing. The examiner noted the function of Muscle Group XXI had not been affected by the Veteran's stab wound or its residuals. Moreover, no respiratory issues had been noted during the most recent VA examination in December 2020. The examiner stated that the Veteran's complaints of intermittent chest pain were likely due to episodic costochondritis, which would result in some difficulty during flare-up of lifting, pushing, and pulling objects up to the chest, but did not limit his ability to perform a physical or sedentary occupation. Also, the Veteran's stab wounds did not impair respiration or limit his ability to perform any occupation. After reviewing the foregoing evidence, the Board acknowledges the Veteran's lay assertion that he has difficulty breathing as a result of the stab wound in service. While the Veteran is competent to report his medical history and observable symptoms, such as pain, he does not have the requisite skill or training to address more complex medical issues such as the presence of muscle tissue damage or to attribute symptoms like breathing difficulties to a specific etiological cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board notes further the Veteran is already compensated for the pain he experiences at the wound site under Diagnostic Code 7804, so his competent reports in this regard have been fully acknowledged. Ultimately, the Board finds the preponderance of evidence establishes the Muscle Group XXI injury resulting from the left chest stab wound is more consistent with the definition of a slight muscle injury under VA regulation and has not more nearly approximated a moderate muscle injury or more severe level of disability at any point in the appeal period. Service treatment records and VA examination reports establish the Veteran had minimal damage at the time of initial injury, with no respiratory issues. He did not appear to have any additional complications for the remainder of his service. Since service VA examiners have determined the Veteran does not currently have any functional loss as a result of the injury. The VA examiners specifically reported he does not have any cardinal signs or symptoms of muscle disability. There does not appear to be any loss of deep fascia or muscle substance; impairment of muscle tonus and loss of power; or a lowered threshold of fatigue when compared to the sound side. In sum, the Board finds a compensable rating is not warranted because the preponderance of evidence establishes the wound is entirely consistent with the definition of a slight muscle wound under VA regulation. Rating for Left Chest Scars Associated with Left Chest Wall Stab Wound The Veteran is currently in receipt of an initial 10 percent rating prior to December 9, 2020, and 20 percent from December 9, 2020, for service-connected left chest scars associated with status post-stab wound to the left chest wall under Diagnostic Code 7804. See June 2021 rating decision. (Notably, a March 2016 rating decision awarded the Veteran a separate noncompensable rating for surgical scar, status post-laparotomy as a result of left chest wall stab wound, rated under Diagnostic Code 7805. The Veteran did not appeal this decision and this issue is not for consideration herein.) Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep and nonlinear. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial and nonlinear. Superficial scars in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Id. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118. STRs show that the Veteran sustained stab wound to the chest in March 1994; the wound healed and left a scar. A September 2012 VA scars/disfigurement DBQ notes the presence of a scar from a stab wound on the chest. The linear scar measured 3 centimeters by 0.5 centimeters and was not painful or unstable. The scar did not result in limitation of function. A July 2015 VA scars/disfigurement DBQ notes the presence of a residual stab wound scar on the chest. The linear scar measured 3 centimeters by 0.5 centimeters and was painful. The scar was not unstable and did not result in limitation of function. It did not impact the Veteran's ability to work. A March 2016 VA scars/disfigurement DBQ notes the history of a stab wound to the chest with minimal muscle injury. A painful scar was noted at the site of the stab wound on the chest. It was not unstable. The linear scar measured 3 centimeters and did not result in limitation of function. It did not impact the Veteran's ability to work. An October 2018 VA scars/disfigurement DBQ notes the Veteran's complaints of numbness with occasional pain at the left chest wound. Two scars were noted at the site of the stab wound on the chest. One was painful. Neither were unstable. There was no underlying tissue damage. The linear scars measured 3 centimeters by 0.5 centimeters and 11 centimeters but 0.5 centimeters. They did not result in limitation of function. A January 2020 VA scars/disfigurement DBQ notes the presence of two healed scars related to the stabbing in service: one tender linear left chest wall scar below the breast area measured 10.16 centimeters by 0.1 centimeters, and one nontender linear left upper chest scar below the nipple measured 5.08 centimeters by 0.635 centimeters. One scar was tender. The scars were not unstable. There was no underlying tissue damage. The scars did not result in limitation of function and did not impact the Veteran's ability to work. A December 9, 2020, VA scars/disfigurement DBQ notes the presence of a left lateral chest wall scar measuring 3 centimeters by 0.2 centimeters, a left medial chest wall scar measuring 13.5 centimeters by 0.2 centimeters, and a midline scar measuring 18 centimeters by 1 centimeter. The scars were painful and tender to palpation but were not unstable. There was no underlying tissue damage. The scars did not result in limitation of function. They also did not impact the Veteran's ability to work. After reviewing the evidenced outlined above, the Board finds that for the period prior to December 9, 2020, the Veteran's service-connected left chest scars associated with status post-stab wound to the left chest wall are rated properly as 10 percent disabling under Diagnostic Code 7804. A higher rating of 20 percent is not warranted because the Veteran did not have three or four scars that were unstable or painful. The scars were not deep, nonlinear, or associated with functional loss, and no other diagnostic code pertaining to scars could provide a higher disability rating. For the period beginning December 9, 2020, the Veteran's service-connected left chest scars associated with status post-stab wound to the left chest wall are rated 20 percent disabling under Diagnostic Code 7804, because he was shown to have three painful scars. A higher rating of 30 percent is not warranted because the Veteran does not have five or more scars that are unstable or painful. The scars are not deep, nonlinear, or associated with functional loss (see the December 2020 VA examination report), and no other diagnostic code pertaining to scars could provide a higher disability rating. REASONS FOR REMAND Rating for Residual Scar, Status Post-Ganglion Cyst Excision Right Hand Historically, a January 2013 rating decision (in part) granted service connection for residual scar status post chest stab wound. The rating decision described a scar on the right hand. Thereafter, a March 2016 Statement of the Case (SOC) noted that the Veteran's service-connected residual scar, status post chest stab wound and service-connected status post-right hand ganglion cyst excision with radial nerve branch impairment would be considered together and a prior 10 percent evaluation was continued. The Board took testimony on the scar issue in the November 2017 hearing, treating the increased rating claim as if an appeal had been properly initiated. In Percy v. Shinseki, 23 Vet. App. 37 (2009), it was the observation of the United States Court of Appeals for Veterans Claims (Court) that, "[A] veteran is entitled to expect that VA means what it says." Id. at 47. Accordingly, as noted by the Board in March 2018, the Veteran's present appeal includes a claim of entitlement to an increased rating for service-connected scars. This includes the scar on the right hand. As noted above, the Regional Office (RO) has recharacterized the service-connected scars, and a separate rating is now assigned for residual scar, status post-ganglion cyst excision of the right hand. A review of the claims file shows that following the October 2019 remand, the Veteran was afforded a VA scar examination in December 2020. Regarding this relevant evidence, 38 C.F.R. § 19.37 states that a Supplemental SOC (SSOC) will be furnished to an appellant and his representative when additional pertinent evidence is received after a previous SOC has been issued, unless the additional evidence received duplicates evidence previously of record which was discussed in the prior SOC. In this case, pertinent rating information was newly obtained by the RO, but this issue was not addressed in a subsequent SSOC. See 38 C.F.R. §§ 19.31, 19.37. As such, in order to afford the Veteran his full procedural rights, on remand, the RO must consider and address all of the evidence of record including the 2020 VA examination report in an appropriate SSOC. See 38 C.F.R. § 19.31. (Continued on the next page) The matter is REMANDED for the following action: Readjudicate the issue of entitlement to an initial rating in excess of 10 percent for residual scar, status post-ganglion cyst excision of the right hand. If any of the benefits sought on appeal are not granted to the Veteran's satisfaction, issue an SSOC that includes a review of all evidence received since the March 2016 SOC and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.