Citation Nr: 21075616 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-66 824 DATE: December 21, 2021 ORDER Entitlement to an effective date earlier than February 9, 2017 for the award of entitlement to service connection for shrapnel wound left leg, muscle group XI injury with retained foreign body is denied. Entitlement to an effective date earlier than February 9, 2017 for the award of a higher 10 percent rating for the Veteran's service-connected left leg shrapnel wound scar is denied. REFERRED CLAIM At the September 2021 virtual hearing of the Board of Veterans' Appeals (Board), the Veteran asserted an argument alleging possible clear and unmistakable error in the final May 2004 rating decision as to the claim of entitlement to service connection for a left leg shrapnel wound adjudicated therein. This matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. See 38 C.F.R. § 20.904 (formerly 19.9). FINDINGS OF FACT 1. Entitlement to service connection for a separate rating based on a left leg muscle group XI injury due to a retained foreign body as a result of a left leg shrapnel wound did not arise until the receipt of the April 28, 2017 lay report of left leg pain caused by a retained foreign body, which was later objectively verified at the June 7, 2017 Compensation and Pension (C&P) examination. 2. The Veteran's increased rating claim was initiated in January 2016, but the criteria for a higher 10 percent rating for the Veteran's service-connected left leg shrapnel wound scar was not factually ascertainable any earlier than February 9, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than February 9, 2017 for the award of entitlement to service connection for shrapnel wound left leg, muscle group XI injury with retained foreign body have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 19.21 (formerly 20.201), 19.52 (formerly 20.302). 2. The criteria for entitlement to an effective date earlier than February 9, 2017 for the award of a higher 10 percent rating for the Veteran's service-connected left leg shrapnel wound scar have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400; 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1995 to May 2004. He is the recipient of the Purple Heart among other awards and decorations. These matters come before the Board on appeal from an August 2017 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2021, the Veteran provided testimony before the undersigned Veterans Law Judge at a Board virtual hearing. A copy of the hearing transcript has been associated with the electronic claims file. These matters were last considered by the RO in an October 2017 Statement of the Case. Evidence received since then is either duplicative of evidence already considered by the RO or is irrelevant to the matters on appeal. Accordingly, the Board may proceed with a merits review of the claims. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. 1. Entitlement to an effective date earlier than February 9, 2017 for the award of entitlement to service connection for shrapnel wound left leg, muscle group XI injury with retained foreign body is denied. In the August 2017 rating decision, the Veteran was awarded service connection for a shrapnel wound in the left leg, manifested by a retained foreign body causing impairment to muscle group XI. The RO assigned a 20 percent rating for this disability, effective February 9, 2017. On appeal, the Veteran argues that he is entitled to an effective date of May 21, 2004 because he alleges that he has suffered from this condition since separation from active duty service. In February 2004, the Veteran filed a claim seeking entitlement to service connection for "left leg [status post] shrapnel." He attended a C&P examination in February 2004 where the Veteran was assessed with a left leg shrapnel wound healed with residual hypoesthesia. The Veteran did not report any signs or symptoms suggestive of a muscle injury. In a May 2004 rating decision, the Veteran was awarded service connection for shrapnel wound of the left leg and assigned a noncompensable rating, effective May 21, 2004. The Veteran's disability was rated by analogy under Diagnostic Code 7802, which applied to scars of the skin. The Veteran did not file new and material evidence or a Notice of Disagreement within one year following the mailing of this rating decision. 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302). Within the one-year appellate period, the Veteran did not challenge the adequacy of the February 2004 C&P examination, the RO's determination to effectuate a single rating using a scar diagnostic code, or any other determination rendered in the May 2004 rating decision as to the issue of entitlement to service connection for a shrapnel wound in the left leg. The Board notes that the electronic claims file shows service treatment records dated as received within the one-year period following the mailing of the May 2004 rating decision; however this is an idiosyncrasy resulting from the transfer of a paper claims file to an electronic claims file. The May 2004 rating decision clearly indicates that the RO reviewed the Veteran's service treatment records at the time of that adjudication. Additionally, vocational rehabilitation documents were received within the one year following the mailing of the May 2004 rating decision, however they were immaterial to the left leg shrapnel wound issue. Consequently, the May 2004 rating decision became final, and fully resolved the claim for a "left leg [status post] shrapnel [wound]" received in February 2004. At the September 2021 Board hearing, the Veteran argued that he tried to appeal the May 2004 rating decision, but he did not know how to do so. The May 25, 2004 letter notifying the Veteran of the May 2004 rating decision clearly contained appellate rights, including VA Form 4107 informing the Veteran of the process necessary to appeal the rating decision. Furthermore, a review of the electronic claims file fails to reveal any submission received within the one-year period following the mailing of the May 2004 rating decision that can be reasonably interpreted as an attempt by the Veteran to appeal the rating decision. The Board finds that the Veteran was fully apprised of his appeal rights upon the notification of the issuance of the May 2004 rating decision, and the Board finds his testimony claiming ignorance to be unsupported by the record. In January 2006, the Veteran filed a claim seeking an increased rating for his service-connected left leg shrapnel wound. The claim was denied in a June 2006 rating decision due to the Veteran's failure to appear at a scheduled C&P examination. The Veteran did not file new and material evidence or a Notice of Disagreement within one year following the mailing of this rating decision. 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302). Consequently, the June 2006 rating decision became final. In January 2016, the Veteran filed an "intent to file a claim" form. In August 2016, within one year of the receipt of this "intent to file a claim" form, the Veteran submitted a claim seeking a higher rating for his service-connected left leg shrapnel wound due to "a worsening condition." The Veteran was scheduled for a C&P examination in October 2016. The VA examiner noted the Veteran's left leg shrapnel wound scar but determined it was not painful or unstable. The examiner noted that the Veteran had an embedded rock fragment in the left calf, which was becoming more uncomfortable, but the scar itself had not changed or become uncomfortable. The examiner explained that the embedded rock fragment was not in the muscle. In a December 2016 rating decision, the RO continued the Veteran's noncompensable rating for a left leg shrapnel wound under the scar diagnostic code. While the Veteran did not submit a Notice of Disagreement within one year of the mailing of this rating decision, new and material evidence relevant to the claim was received during this time period. On February 9, 2017, the RO received an "intent to file a claim" form, and in April 2017, the Veteran filed a claim for "retained foreign body (left calf) due to left leg." In April 2017, the Veteran's representative submitted a statement indicating that the Veteran "has a piece of a solid mineral (rock) retained in his left calf from his combat wounds suffered on 29 Aug 2003 in Iraq. The object presents pain at all times to the affected area." At a C&P examination in June 2017within one year of the December 2016 rating decisionit was determined for the first time that the Veteran experienced a muscle injury to group XI in the left leg. The Veteran's left leg shrapnel would scar was also evaluated at a June 2017 C&P examination. These C&P examinations were conducted within one year of the December 2016 rating decision, and therefore constitute new and material evidence sufficient to toll the finality of that rating decision. As a result of the June 2017 C&P examination, the Veteran was awarded service connection for a shrapnel wound in the left leg, manifested by a retained foreign body causing impairment to the XI muscle group. The RO assigned a 20 percent rating for this disability, effective February 9, 2017, using Diagnostic Code 5311, which rates for muscle injuries to group XI. As explained by the undersigned at the September 2021 Board hearing, the record shows that the Veteran has been service-connected for a left leg shrapnel wound since May 21, 2004, rated as noncompensable until February 9, 2017, when the Veteran was granted a higher 10 percent rating for his left leg shrapnel wound scar and was assigned a separate 20 percent rating for a left leg shrapnel wound injury impacting muscle group XI due to a retained foreign body. When the Veteran filed the claim in April 2017, he indicated he was seeking service connection for a retained foreign body that was resulting in pain. In essence, he was not seeking service connection for an entirely new disability, instead he was seeking a separate compensable rating for residuals of his already service-connected left leg shrapnel wound. As such, the Board shall apply the effective date laws for increased compensation versus those applicable to original claims. Under 38 C.F.R. § 3.400(o)(1), the proper effective date for a claim seeking increased compensation is the date of receipt of the claim or date entitlement arose, whichever is later. See Harper v. Brown, 10 Vet. App. 125, 126 (1997) (when the filing of the claim precedes the increase in disability, the general rule applies). However, if the increase occurred within one year prior to the claim, the increase is effective as of the date it was "factually ascertainable." 38 C.F.R. § 3.400 (o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. See id.; Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("[T]he plain language of [section] 5110(b)(2) [now codified in section 5110(b)(3)]... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."). Here, the evidence does not objectively establish an injury to muscle group XI in the left leg as a result of retained foreign body due to the Veteran's service-connected left leg shrapnel wound until the date of the June 2017 C&P examination. This was the first date that an injury to muscle group XI in the left leg due to a retained foreign body was first objectively identified by competent evidence. While it is true that the Veteran has experienced a retained foreign body since the date of his August 29, 2003 in-service shrapnel injury, the evidence does not objectively confirm a muscle injury until the June 2017 C&P examination. A magnetic resonance image (MRI) from October 2003 confirmed the presence of a metallic artifact in the subcutaneous fat of the left thigh, immediately adjacent to the distal aspect of the gracilis muscle; however, the radiologist clearly indicated that the foreign body did not extend into the muscle. At the October 2016 C&P examination, the examiner noted the retained foreign body and related discomfort, but explicitly determined that it was not injuring the muscle. There is no competent evidence between November 2003 and the October 2016 C&P examination showing a left leg muscle injury, yet alone a group XI muscle injury directly caused by a retained foreign body, and such an injury was not objectively documented until the June 2017 C&P examination. The Board has considered the April 2017 statement from the Veteran's representative, which communicated the Veteran's lay reports regarding pain in the left leg, as arguably suggesting the presence of a muscle injury that was later verified at the June 2017 C&P examination. As such, April 28, 2017 is the first date that it was factually ascertainable that the Veteran was experiencing a left leg shrapnel wound injury caused by a retained foreign body impairing muscle group XI. See Swain v. McDonald, 27 Vet. App. 219, 223-24 (2015). Despite this, the RO has already afforded the Veteran grace in effectuating service connection for a separate rating based on an injury to muscle group XI in the left leg as of February 9, 2017, nearly two months prior to this April 2017 lay report. Additionally, the Board has considered the appropriate look back period for the increased rating claim initiated in January 2016, and finds no probative evidence establishing a muscle injury caused by a retained foreign body during this time period and until the April 2017 communication of a lay report of left leg muscle pain. In finding so, the Board notes the Veteran's August 2016 lay report of a "worsening" of his left leg shrapnel wound condition, but he did not provide more specific information regarding particular symptoms or pain in the muscle. This vague statement does not demonstrate a factually ascertainable left leg muscle injury. The record overwhelmingly establishes that an injury to muscle group XI in the left leg due to a retained foreign body from the Veteran's service-connected shrapnel wound was not factually ascertainable until the April 2017 lay report, where it was later clinically verified at the June 2017 C&P examination, and the RO has already afforded the Veteran the benefit of the doubt in effectuating a rating for this disability as of the even earlier date of February 9, 2017. At the September 2021 Board hearing, the Veteran and his representative argued that the rating for a muscle injury due to a retained foreign body should go back to May 21, 2004 because he has continuously experienced a painful foreign body in the left leg since his separation from active duty. While the Veteran filed a claim within one year of his separation from service for "left leg [status post] shrapnel," this claim was fully addressed and resolved in the unappealed and final May 2004 rating decision. See 38 C.F.R. § 3.400(b)(2)(i). At that time, there was no evidence that the Veteran's service-connected left leg shrapnel wound was manifested by any muscle injury. See November 2003 MRI. The record contains little evidence substantiating the Veteran's allegations of experiencing constant left leg muscle pain due to a retained foreign body since service separation. Moreover, even if the Veteran did experience pain in his left leg, he is not competent to attribute such pain to a retained foreign body embedded in muscle, as he is without the medical training and expertise to opine on such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The most probative evidence of record establishes that entitlement to service connection for a separate rating based on a left leg muscle group XI injury due to a retained foreign body as a result of a left leg shrapnel wound did not arise until the receipt of the April 28, 2017 communicated lay report, the first day such an injury was factually ascertainable in the record. The RO already effectuated service connection for this rating as of the earlier date of February 9, 2017, and there is no basis to support the award of an effective date earlier than February 9, 2017 for this separate compensable rating. The Veteran's appeal for such is denied. 2. Entitlement to an effective date earlier than February 9, 2017 for the award of a higher 10 percent rating for the Veteran's service-connected left leg shrapnel wound scar is denied. In the August 2017 rating decision, the RO granted a higher 10 percent rating for the Veteran's service-connected left leg shrapnel wound scar, effective February 9, 2017. On appeal, the Veteran argues that he is entitled to this rating as of May 21, 2004 because his left leg shrapnel wound, including his scar, has allegedly remained symptomatic since service separation. The same laws governing the assignment of effective dates cited above regarding the Veteran's muscle group injury claim also apply to his claim regarding his left leg shrapnel wound scar. As noted above, the Veteran was initially assigned service connection and a noncompensable rating for this disability in an unappealed and final May 2004 rating decision. Likewise, the RO continued the noncompensable rating in an unappealed and final June 2006 rating decision. To achieve a 10 percent rating or higher under the diagnostic codes for the scars during the period under consideration, the evidence must show that the Veteran's scar was deep, nonlinear, and an area of at least 6 square inches or greater; superficial, nonlinear, and an area of 144 square inches or greater; or painful or unstable. See 38 C.F.R. § 4.118. As the relevant appeal period predates August 13, 2018, the updated regulatory amendments to the diagnostic criteria rating skin disabilities are not for consideration. See 83 Fed. Reg. 32,592 (July 13, 2018). In January 2016, the Veteran filed an "intent to file a claim" form and later submitted an August 2016 request for increased compensation due to his service-connected left leg shrapnel wound. In this request, the Veteran lay reported a "worsening" of his left leg shrapnel wound condition, but did not provide more specific information regarding particular symptoms. In December 2016, the RO issued a rating decision denying a compensable rating for the Veteran's left leg shrapnel wound based on the results of an October 2016 C&P examination, which explained that the Veteran's scar was not unstable or painful. Regarding the total area of the scar, the examiner directed VA to prior C&P examination findings, as the scar area was unchanged. In this regard, the Board notes that the February 2004 examiner indicated that the Veteran's scar was measured as 0.25 x 0.25 inches. As explained above, new and material evidence was received within the one-year period following the December 2016 rating decision. In June 2017, the Veteran attended a C&P examination to assess his service-connected left leg shrapnel wound scar. The examiner identified three scars, but explained that only scar #1 was attributed to the shrapnel wound (the other 2 scars were attributed to his left knee surgery). This shrapnel wound scar was not painful or unstable. The scar was located in the posterior left mind-calf, was superficial and non-linear, and measured 2 x 2 centimeters. Despite the dearth of clinical findings supporting a compensable rating under the scar codes, the RO granted a higher 10 percent rating in the August 2017 rating decision due to one painful scar under Diagnostic Coded 7804, 38 C.F.R. § 4.118. It is unclear from the record which evidence the RO relied upon in granting this increased benefit, as the October 2016 and June 2017 C&P examinations indicated that the Veteran's left leg shrapnel wound scar was not painful or unstable, and did not meet the area requirements for a rating under any of the applicable scar diagnostic codes. Presumably, the RO was relying upon the April 28, 2017 statement from the Veteran's representative relaying the Veteran's lay reports of experiencing pain in the left leg, although this statement did not specifically attribute such pain to the Veteran's scar. Additionally, the Board has reviewed the Veteran's VA treatment records during the applicable time period, and they do not document that the Veteran's left leg shrapnel wound scar was painful, unstable, or of a significant area to warrant a compensable rating. The RO afforded the Veteran the benefit of the doubt in awarding the increased rating as of the February 9, 2017 receipt date of the "intent to file a claim" form. At the September 2021 Board hearing, the Veteran has alleged that his left leg shrapnel wound has remained symptomatic from service. This lay evidence is outweighed by the clinical examinations over time, which do not show a left leg shrapnel wound scar that was painful, unstable or a significant area to warrant a compensable rating any earlier than February 9, 2017. See e.g. February 2004, October 2016 C&P examinations, and VA treatment records. The Veteran cannot achieve an effective date of May 21, 2004 for this increased evaluation, because his initial claim was fully resolved and unappealed in the final May 2004 rating decision. The present claim was initiated through the filing of a January 2016 "intent to file a claim" form. The Board's review of the electronic claims file fails to reveal any probative evidence during the period on appeal, including the relevant one-year look back period, demonstrating that the Veteran ever satisfied the criteria for a compensable left leg shrapnel scar rating. The RO was generous in assigning a higher rating as of February 9, 2017, and the Board finds no evidence to support the award of his rating any earlier than the assigned date. As such, the Veteran's appeal seeking an effective date earlier than February 9, 2017 for the award of a higher 10 percent rating for his service-connected left leg shrapnel wound scar is denied. The Board acknowledges the Veteran's honorable service to our country and is sympathetic to his circumstances; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995). The Board is grateful to the Veteran for his honorable and courageous service and regrets that a more favorable outcome could not be reached in his appeals. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.