Citation Nr: 21064554 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 10-13 062 DATE: October 20, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for residuals of shell fragment injury to liver is denied. Entitlement to an increased rating in excess of 10 percent for muscle XIX injury is denied. REMANDED Entitlement to a compensable rating for scars of the left lower leg is remanded. Entitlement to service connection for bilateral leg condition, secondary to shell fragment injury, is remanded. Entitlement to service connection for bilateral foot condition, secondary to shell fragment injury, is remanded. FINDINGS OF FACT 1. The Veteran's injury to liver residuals has not manifested to daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period; or has manifested to cirrhosis. 2. The Veteran's muscle XIX injury has not manifested to moderately severe symptoms. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for residuals of shell fragment injury to liver have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7311, 7345. 2. The criteria for an increased rating in excess of 10 percent for muscle XIX injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1945 to March 1946, and from March 1951 to March 1953. The claims were brought before the Board in October 2017, May 2019, September 2019, and July 2020 and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affair (VA) Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2020). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an Increased Rating: Liver Injury The Veteran's service-connected liver disability is currently rated as 10 percent under Diagnostic Code (DC) 7311 for the Residuals of Liver Injury. Depending on the specific residuals, DC 7311 provides that disabilities are to be separately evaluated under Diagnostic Code 7301 for adhesions of the peritoneum, Diagnostic Code 7312 for cirrhosis of liver, and Diagnostic Code 7345 for chronic liver disease without cirrhosis. 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7312, 7345. The Veteran has not been diagnosed with peritoneal adhesions nor cirrhosis, and therefore, Diagnostic Codes 7301 and 7312 are not for application. Diagnostic Code 7345 provides a 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted with daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. And lastly, a 100 percent disability rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.117, DC 7345. A note to DC 7345 specifically clarifies that an "incapacitating episode" as contemplated by the rating criteria means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7345, Note (2). In June 2009, the Veteran attended a VA examination. The Veteran's liver injury was noted as not affecting general body health or weight. His condition did cause arthralgia. However, his condition did not cause fatigability, gastrointestinal disturbances, nausea, vomiting, loss of appetite, or jaundice. He did report abdominal pain located to the right of his stomach that is constant. He reported it as a pulling pain. The examiner noted the symptoms from his liver condition occur near constantly and allows the Veteran to function, but he is unable to work. The Veteran reported that his condition does not cause incapacitation and he has never vomited blood. He further never passed any black tarry stools. His liver condition did not require abdominal tapping. He had no history of coma, confusion, liver transplant, or hepatitis. The Veteran was not receiving any treatment for his condition. He did drink alcohol regularly. The Veteran reported not experiencing any overall functional impairment from his liver condition. In November 2015, the Veteran was provided another VA examination. The Veteran's liver panel blood tests were within normal limits with no sequelae. He did not require continuous use of medication to control his condition. He did not have any signs or symptoms of chronic or infectious liver diseases, hepatitis C, or incapacitation symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, or upper quadrant pain. The Veteran did not have cirrhosis of the liver or a history of any transplant. The Veteran did not have peritoneal adhesions. Imaging studies showed no definite liver abnormality. The Veteran attended another VA examination in November 2016. The Veteran did not require continuous use of medication. The Veteran did not have hepatitis C, or any incapacitating episodes within the past 12 months. The Veteran had no signs or symptoms of cirrhosis of any kind. The Veteran was not a liver transplant candidate nor had he undergone a liver transplant. In December 2017, the Veteran was seen for another VA examination. The Veteran reported that his right abdomen was painful at times. The Veteran had no signs or symptoms of chronic or infectious liver disease. The Veteran did not have hepatitis C, or any incapacitating episodes within the past 12 months. The Veteran had no signs or symptoms of cirrhosis of any kind. The Veteran was not a liver transplant candidate, nor had he undergone a liver transplant. The Veteran was most recently provided an examination in June 2019. The Veteran reported pain symptoms. As noted in his other examinations, the Veteran had no signs or symptoms of chronic or infectious liver disease. The Veteran did not have hepatitis C, or any incapacitating episodes within the past 12 months. The Veteran had no signs or symptoms of cirrhosis of any kind. The Veteran was not a liver transplant candidate, nor had he undergone a liver transplant. The Board notes that VA treatment records are silent for any complaints or treatment regarding the Veteran's liver injury. Further, there is no other evidence of record showing treatment or complaints for liver injury. Moreover, following the Board's September 2019 and July 2020 remands, the Regional Office scheduled the Veteran for VA examinations; however, the Veteran did not show up to his examinations following the September 2019 remand, and refused the examination following the July 2020 remand. The Board notes that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, after review of the evidence of record, the Board finds that a rating in excess of 10 percent for residuals of liver injury is not warranted. At no time has the Veteran's liver injury manifested to daily fatigue, malaise, anorexia, requiring dietary restrictions, continuous medication, or incapacitating episodes. In fact, the only symptom reported by the Veteran is occasional pain at the wound site. The Veteran has also not required any treatment or medical attention. The Veteran has further not been diagnosed with cirrhosis or adhesions of peritoneum which would warrant consideration under another diagnostic code for the liver. See 38 C.F.R. § 4.114, DC 7302, 7311-12, 7345. The Board also acknowledges the Veteran's assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran's statements and finds them credible and consistent with the rating assigned. In light of the foregoing, the Board concludes that a rating in excess of 10 percent for residuals of liver injury is not warranted. The benefit of the doubt doctrine has is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to an Increased Rating: Muscle XIX Injury The Veteran's muscle XIX injury is currently rated as 10 percent disabling under Diagnostic Code (DC) 5319 Group XIX Function. Muscle Group XIX affects support and compression of abdominal wall and lower thorax, flexion and lateral motions of the spine, and synergist in strong downward movement of the arm. Under Diagnostic Code 5319, a 10 percent disability rating is warranted for a moderate disability. A 30 percent disability rating is warranted for moderately severe disability. A maximum 50 percent disability rating is warranted for severe disability. 38 C.F.R. § 4.73, DC 5319. The Board notes that Note (2) 38 C.F.R. § 4.73 provides that ratings of slight, moderate, moderately severe, or severe for diagnostic codes 5301 through 5323 will be determined based upon the criteria contained in § 4.56. 38 C.F.R. § 4.56 (d) provides that under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: A slight disability of muscles is shown when (i) there's simple wound of muscle without debridement or infection; (ii) Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results and no cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section; and lastly, (iii) with minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and impairment of function or metallic fragments retained in muscle tissue. A moderate disability of muscles is shown when (i) there's a 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) 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; and (iii) an entrance and (if present) exit scars, that are small or linear, indicating short track of missile through muscle tissue. There is 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. Moderately severe disability of muscles is shown when (i) 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) 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; and (iii) there is an 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, and tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Lastly, a severe disability of muscles is shown when (i) there's a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring; (ii) 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) there are 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, the muscle swells and hardens abnormally in contraction, and tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56 (c) explains that 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. In June 2009, the Veteran attended a VA examination. The examiner noted the condition did not show muscle weakness or muscle wasting. Palpation of the muscle revealed no loss of deep fascia or muscle substance and no impairment of muscle tone. There was no muscle wound present. The Veteran was not receiving treatment for his condition. There were no signs of lowered endurance or impaired coordination. His muscle strength was a three out of five, with five being normal strength. The muscle injury did not affect the function of the body part it controls and there was no muscle herniation. The muscle injury did not involve any tendon, bone, joint, or nerve damage. In November 2015, the Veteran was provided another VA examination. The examiner noted the muscle injury was not to the forearm, hand, foot, pelvic, leg, or thigh. His injury was to the muscles of the abdominal wall on the right size. The Veteran did have a scar of entrance and exit showing missile through one or more muscle groups. There was no history of diaphragm of herniation, extensive muscle hernia, or injury to facial muscles. The Veteran's injury did not affect muscle substance or function. There was no muscle atrophy. The Veteran's muscle injury did not require use of assistive devices. Imaging studies showed there was no adherence to the bowel. The Veteran attended another VA examination in November 2016. The Veteran reported pain. The examiner noted the muscle injury was to both sides. There was no history of diaphragm of herniation, extensive muscle hernia, or injury to facial muscles. The Veteran had a minimal scar. The Veteran's injury did not affect muscle substance or function. The Veteran had cardinal signs or symptoms of muscle disability, which was occasional fatigue and pain. The Veteran had normal muscle strength. There was no muscle atrophy. The Veteran's muscle injury did not require use of assistive devices. In December 2017, the Veteran was provided a VA examination. The examiner noted the Veteran had well healed scars. There was no history of diaphragm of herniation, extensive muscle hernia, or injury to facial muscles. The Veteran had entrance and exit scars that were small, linear, and indicating short track of missile through muscle tissue. The Veteran's injury did not affect muscle substance or function. The Veteran has no cardinal signs or symptoms. The Veteran had normal muscle strength. There was no muscle atrophy. The Veteran's muscle injury did not require use of assistive devices. The Board notes that VA treatment records are silent for any complaints or treatment regarding the Veteran's muscle XIX injury. Further, there is no other evidence of record showing treatment or complaints for muscle XIX injury. The Board again notes, as provided above, following the Board's September 2019 and July 2020 remands, the Regional Office scheduled the Veteran for VA examinations; however, the Veteran did not show up to his examinations following the September 2019 remand, and refused the examination following the July 2020 remand. The Board notes that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). After review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. At no time has the Veteran's muscle XIX injury been shown to be moderately severe. The Veteran's injury does not show a 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. The Veteran has only occasionally reported cardinal symptoms such as fatigue or pain and has never required hospitalization or treatment for his injury. Moreover, the Veteran's injury has never shown an indication of palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, or tests of strength and endurance compared with sound side demonstrative of positive evidence of impairment. See 38 C.F.R. §§ 4.56, 4.73, DC 5319. The Board notes that the Veteran's muscle XIX injury-related scar is considered in his rating under DC 5319 and therefore, consideration of a separate rating for his scars under 38 C.F.R. § 4.118, Schedule of Ratings for the Skin is not warranted and would constitute undue pyramiding. See 38 C.F.R. § 4.14. The Board acknowledges the Veteran's assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran's statements and finds them credible and consistent with the rating assigned. Accordingly, the Board concludes that a rating in excess of 10 percent for residuals of muscle XIX injury is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is necessary to afford the Veteran every possible consideration in his remaining claims. 1. Entitlement to Service Connection: Bilateral Leg and Bilateral Feet Conditions 2. Entitlement to Increased Rating: Lower Leg Scars Regarding the Veteran's claims for service connection for bilateral leg condition and bilateral feet condition, as well as his increased rating claim for lower left leg scar, the Board finds that the Regional Office (RO) did not substantially comply with the terms of the Board's July 2020 remand. Stegall v. West, 11 Vet. App. at 270-71. In the Board's July 2020 Remand, the Board instructed the RO to schedule the Veteran for VA examinations, and if the Veteran does not attend such examinations, the RO was to still send the file to an appropriate examiner to provide the requested opinions. However, the RO did not send the file to an examiner for the requested opinions after the Veteran refused the examinations. The Board notes that the Court held in Stegall that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with remand order. See Stegall, 11 Vet. App. at 268. The Board finds that an opinion discussing whether the notation of a muscle injury to group X in the Veteran's November 2016 examination was correct and whether it is related to his shrapnel/shell fragment injury is needed to adjudicate the Veteran's claims for bilateral leg condition and bilateral feet condition. Further, as requested in the July 2020 remand, a discussion of the possible trajectory of any shell fragments and its residual disabilities is also needed for the remaining claims, including his increased rating for lower leg scars. Therefore, a remand is required. The matters are REMANDED for the following action: Send the claims file to an appropriate examiner to determine the etiology of the Veteran's claimed bilateral leg and feet conditions, as well as the severity of his lower left leg scar(s). A copy of this remand should be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements, as well as the Veteran's report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: (a) Please clarify whether the group X muscle injury noted in the November 2016 examination was proper and is related to his shrapnel/shell fragment injuries and his claimed bilateral leg and bilateral feet conditions. (b) Please discuss the probable trajectory of any shell fragments, the probable depth of penetration of any shell fragments, and all residual disabilities associated with shell fragment wounds, including what wounds, if any, are through and through, as well as whether there was a group X, and group XX lumbar injury as noted in the November 2016 examination. In rendering this opinion, the examiner should address the service treatment records describing the Veteran's injury, particularly those contained in pages 59, 6768, and 8285 of 185. (c) Discuss the severity of the Veteran's lower left leg scar, to include any that are related to a possible muscle group X injury. The examiner should identify any findings related to the Veteran's left leg scar(s). The examiner should also discuss all findings in terms of the Schedular of Ratings, Diagnostic Codes 7804-05 for Scars, noting if the scar(s) is stable or unstable, and if any pain is present or reported. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.