Citation Nr: 21005837 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-20 902 DATE: February 2, 2021 ORDER Entitlement to a compensable rating for a neck scar, secondary to a gunshot wound, prior to July 8, 2019, and to a rating in excess of 10 percent thereafter is denied. Entitlement to separate service connection for a trapezius muscle injury secondary to a gunshot wound is granted. REMANDED Entitlement to service connection for a neck condition secondary to a gunshot wound is remanded. Entitlement to service connection for a left shoulder condition secondary to a gunshot wound is remanded. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s neck scar has measured, at maximum, 3.5 by 0.2 centimeters and has not displayed any characteristics of disfigurement, nor has it involved palpable tissue loss or gross distortion or asymmetry of features. 2. Prior to July 8, 2019, the preponderance of the evidence is against a finding that the Veteran’s neck scar was painful. 3. As of July 8, 2019, the evidence demonstrates that the Veteran’s neck scar—his only service-connected scar—is painful. 4. The preponderance of the evidence is against a finding that the Veteran’s neck scar results in any other symptoms of manifests in functional loss. 5. The evidence supports a finding that the Veteran has a current trapezius muscle disability that is causally related to a gunshot wound incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for a neck scar secondary to a gunshot wound prior to July 8, 2019, and to a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7800, 7804, 7805 (2019). 2. The criteria for entitlement to separate service connection for a trapezius muscle disability secondary to a gunshot wound have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to September 1967, and from March 1970 to June 1988, to include combat service in Vietnam for which he was awarded the Purple Heart. The Veteran testified before the Board in an August 2018 hearing. This case comes on appeal of a July 2010 rating decision and was previously before the Board in February 2019. At that time, the Board acknowledged that the procedural history in the claim had been complicated by several miscommunications between the Veteran and VA. Although the issue had been presented in the agency of original jurisdiction’s (AOJ) adjudications as an increased rating for a neck scar, secondary to a gunshot wound, the Veteran’s statements and communications made it clear that he was seeking compensation for a variety of residuals of a gunshot wound. Accordingly, the Board recharacterized the issue as entitlement to an increased rating for residuals of a gunshot wound and remanded the claim for examinations to clarify the etiology and severity of the disabilities the Veteran claimed to be secondary to the gunshot wound he incurred in service. Subsequent to the Board’s remand, the Veteran underwent examinations for evaluation of the neck scar, muscle injury, neck disability, and left shoulder disability. In October 2020, the AOJ then granted entitlement to service connection for “painful scar, back of neck, residual of gunshot wound” at a rating of 10 percent. As the Veteran had already been service-connected for the scar on the back of his neck, this decision effectively granted entitlement to a partial increased rating for residuals of a gunshot wound. In a corresponding supplemental statement of the case (SSOC), the AOJ found that the medical evidence of record did not show additional disabilities related to the service-connected scar that warranted service connection. With the appeal once again before it, the Board now is tasked with evaluating the Veteran’s claim for an increased rating for residuals of a gunshot wound, as the issue was characterized in the Board’s previous decision. In this light, the Board notes that in Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (Court) reminded the Board that, in evaluating the rating of a disability, VA has a duty to maximize benefits, and that this includes determining whether secondary service connection is warranted for additional symptoms and effects not contemplated by an applicable diagnostic code. See Morgan, 31 Vet. App. at 167. Here, the Veteran’s initial claim identified his disability as a gunshot wound and VA has determined that such injury was incurred in service. Notably, a gunshot wound itself is not a disability that is considered by the schedule of disability ratings under Part 4 of Title 38 of the Code of Federal Regulations. Accordingly, applying the Court’s holding in Morgan, VA has a duty to consider whether separate service connection is warranted in evaluating the symptoms and effects that the Veteran claims are secondary to his in-service gunshot wound. To the extent that the AOJ has already granted service connection for the Veteran’s neck scar, it has already conceded that this disability is secondary to the gunshot wound and the Board must evaluate the severity of that disability on appeal. However, in fulfilling its duty to maximize the Veteran’s benefits, the Board must also consider whether separate service connection is warranted for the additional symptoms the Veteran contends are secondary to his gunshot wound. These symptoms include muscle pain of the left upper torso, a left shoulder disability, and a neck disability. As will be further addressed below, the Board has found that sufficient information is available to make a determination regarding the muscle injury, while additional development is necessary to address the left shoulder and neck disabilities. 1. Entitlement to an initial compensable rating for a neck scar secondary to a gunshot wound prior to July 8, 2019, and to a rating in excess of 10 percent thereafter By way of background, in an April 2013 rating decision, the AOJ granted entitlement to service connection for a neck scar at a rating of 0 percent, effective the date of the Veteran’s November 2009 claim. During the pendency of this appeal, the AOJ issued an October 2020 rating decision increasing the rating of the Veteran’s neck scar to 10 percent, effective the date of a July 8, 2019 examination. As this represents only a partial grant of benefits sought, the propriety of the rating remains on appeal for the entire claim period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). Scars are rated under Diagnostic Codes 7800 ¬– 7805 within 38 C.F.R. § 4.118. Pursuant to the rating schedule, Diagnostic Code 7800 rates scars of the head, face, and neck. Diagnostic Code 7801 rates scars not of the head, face, or neck, that are deep and nonlinear (under former criteria, prior to August 13, 2018), or are associated with underlying soft tissue damage (under current criteria). Diagnostic Code 7802 rates scars not of the head, face, or neck, that are superficial and nonlinear (under former criteria, prior to August 13, 2018), or that are not associated with underlying soft tissue damage (under current criteria). Diagnostic Code 7804 rates scars that are unstable or painful. Diagnostic Code 7805 rates scars that are not covered under any of the previous Diagnostic Codes, with the instruction to evaluate any other disabling effects under an appropriate Diagnostic Code. Essentially this means that scars are evaluated based on their location, their depth, their linear or nonlinear qualities, their stability, and their pain, as well as any other effects they may cause. The Veteran’s scar was first evaluated in a March 2013 examination. At that time, the examiner documented a superficial scar of the left lateral neck. The examiner reported that the scar measured 3.0 centimeters in length and was linear, nontender, stable, and asymptomatic. The examiner also found that the scar itself was not associated with other pertinent physical findings, nor did it result in any limitation of function. In June 2015, the Veteran submitted a letter from his private physician, Dr. F.D.S. Dr. F.D.S. reported that the Veteran was wounded by sniper fire during military service. According to Dr. F.D.S., the wound was a deep-penetrating wound to the posterior portion of the left shoulder, penetrating into the upper chest cavity, and, at the time of the letter, the Veteran had very limited range of motion in his neck and shoulder. Dr. F.D.S. reported that the wound and its complications caused the Veteran severe pain. In May 2017, the Veteran once again underwent a VA examination. At that time, the examiner once again identified a scar of the left lateral neck. The examiner reported that the scar measured 3.0 centimeters by 0.2 centimeters. According to the examiner, the scar was not painful or unstable, and was not due to burns. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was not abnormal pigmentation or texture of the head, face, or neck, and there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The examiner opined that the scar itself did not result in any limitation of function. In an August 2018 hearing before the Board, the Veteran reported that the scar itself was not painful and that the painful symptoms related to his gunshot wound involved deeper muscle pain. Subsequent to the Board’s February 2019 remand, the Veteran underwent another VA examination in July 2019. At that time, the examiner noted that the Veteran’s neck scar was painful, but was not unstable, was not due to burns, and involved no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The scar measured 3.5 centimeters by 0.2 centimeters and was tender to palpation, but did not result in any limitation of function. Noting that the Veteran’s scar is of the neck, Diagnostic Code 7800 applies. As the scar is linear and of the neck, the former and current Diagnostic Codes 7801 and 7802 do not apply. Notably, the Veteran’s scar was first found to be painful at the time of the July 2019 examination. Indeed, prior to that point, VA examinations reported that the scar was not painful, and the Veteran himself testified in August 2018 that the scar was not painful if he pressed down on it. Thus, there is no evidence that the scar was painful prior to July 2019. Accordingly, the Board will consider ratings under Diagnostic Code 7804 from that point forward. Under Diagnostic Code 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) of the Diagnostic Code identifies the eight characteristics of disfigurement as: 1) a scar of five or more inches (13 or more centimeters) in length; 2) a scar at least one-quarter inch (0.6 centimeters) wide at its widest part; 3) the surface contour of the scar is elevated or depressed on palpation; 4) the scar is adherent to underlying tissue; 5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); 6) the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); 7) there is underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); or, 8) the skin is indurated and inflexible in an area exceeding six square inches (39 square centimeters). Here, the Veteran’s scar has not met any of the characteristics of disfigurement under Diagnostic Code 7800. At its longest and widest, the scar was found to be 3.5 by 0.2 centimeters, falling short of the measurements required in criteria 1 and 2. The surface contour has not been found to be elevated or depressed on palpation, the scar is not adherent to underlying tissue, the skin is not differently pigmented and texture is not abnormal in an area exceeding six square inches. There is no underlying soft tissue missing and the skin is not indurated or inflexible in an area exceeding six square inches. Moreover, there have been no findings of visible or palpable tissue loss or gross distortion or asymmetry of features. Thus, based on Diagnostic Code 7800, the Veteran’s neck scar has not met the criteria for a compensable evaluation at any point during the period on appeal. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A rating of 20 percent is warranted for three or four scars that are unstable or painful. A rating of 30 percent is warranted for five or more scars that are unstable or painful. For the purposes of Diagnostic Code 7804, Note (1) clarifies that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Throughout the period on appeal, there has been no evidence that the Veteran’s scar is unstable. As was noted above, prior to the July 2019 examination, the scar was deemed not to be painful, both by examiners as well as the Veteran’s own testimony. As of the July 2019 examination, the scar was found to be painful. Thus, with one painful scar, a rating of 10 percent is warranted from the date of the examination, as that is the first point at which the symptoms are identified in the record. The Board has also considered whether a rating is warranted under Diagnostic Code 7805 for any disabling effects not considered under Diagnostic Codes 7800 – 7804. Throughout each VA examination, the examiners have consistently reported that the Veteran’s scar does not result in any functional loss, nor is it related to any other pertinent physical findings. The Board acknowledges the June 2015 letter from Dr. F.D.S., however, in that letter, Dr. F.D.S. described pain and limitation of motion due to the Veteran’s gunshot wound residuals, generally, and not specifically to the neck scar. The Board finds clarification in the Veteran’s August 2018 testimony that the scar itself did not cause functional limitations but rather those limitations were related to muscle injuries from the gunshot wound. Thus, a rating under Diagnostic Code 7805 is not warranted. The Board has also considered the changes made to 38 C.F.R. § 4.118 in August 2018, during the pendency of this claim. However, pertinent to ratings of scars, those changes applied to Diagnostic Codes 7801 and 7802, not 7800, 7804, or 7805. Thus, those changes have no bearing in this particular case. Accordingly, based on the foregoing, the Veteran’s neck scar warrants a noncompensable rating prior to July 8, 2019. As of July 8, 2019—the first date for which there is evidence that the scar is painful—the Veteran’s neck scar warrants a 10 percent rating under Diagnostic Code 7804. Thus, the preponderance of the evidence demonstrates that the correct ratings have already been established in the AOJ’s evaluation of the disability. As the preponderance of the evidence is against a finding that a higher rating is warranted, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a trapezius muscle injury secondary to a gunshot wound Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Moreover, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected as well. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Throughout the pursuit of this claim, the Veteran has emphasized that the residuals of the gunshot wound he incurred in service include effects from shrapnel that has remained in his upper torso. Because this contention had not been adequately addressed previously, in February 2019, the Board remanded the claim to address any injuries related to such shrapnel. In July 2019, the Veteran underwent a VA muscle injuries examination. At that time, the examiner diagnosed a left trapezius muscle strain. The examiner noted the Veteran’s complaints that the condition was incurred in 1966, stemming from a gunshot wound incurred during wartime. The examiner then reported that there was x-ray evidence of retained metallic fragments. Specifically, the examiner referenced a January 2018 chest x-ray with a small foreign object noted as a “bullet in [left] upper chest/shoulder from Vietnam” on the film. The examiner opined that the Veteran’s status post trapezius muscle strain is due to the neck gunshot wound injury, given the location of the complaint. As was noted above, VA has previously conceded the Veteran’s in-service gunshot wound. Here, the VA examiner identified x-ray evidence of metallic fragments secondary to the gunshot wound. The examiner also opined that the location of the fragments and the location of the Veteran’s pain support a finding that the gunshot wound residuals are the cause of the pain. Thus, with evidence of a current disability, an in-service injury, and a medical nexus between the two, the criteria for separate service connection for a trapezius muscle injury secondary to the Veteran’s gunshot wound have been met. REASONS FOR REMAND 1. Entitlement to service connection for a neck condition secondary to a gunshot wound is remanded. 2. Entitlement to service connection for a left shoulder condition secondary to a gunshot wound is remanded. At the same time that the Veteran underwent the July 2019 VA muscle injuries examination discussed above, he also underwent VA examinations for neck condition and shoulder and arm conditions. In those examinations, the examiner diagnosed cervical strain and left shoulder strain (apart from the trapezius strain), status post left clavicle fracture. The examiner then stated, “It is my opinion that the foreign bodies noted in his torso or chest alone would not cause any current impairment to the proper function of the shoulder or cervical spine.” The examiner did not support this opinion with any medical rationale, therefore the opinion is not adequate for adjudication purposes. In October 2020, the AOJ obtained an addendum opinion regarding the left shoulder disability, but not the neck disability. There, the examiner stated that imaging performed had not noted any visible shrapnel remnants. This is in direct contradiction to the July 2019 examiner’s report that metallic fragments were shown on a January 2018 chest x-ray and were noted as stemming from a gunshot wound in Vietnam. There was no explanation for this contradictory finding, rendering the opinion inadequate. Thus, on remand, the Veteran should be afforded new examinations of the neck and left shoulder. The examiner should identify all current disabilities of the Veteran’s neck and left shoulder and determine whether they are causally related to the metallic fragments shown in the January 2018 chest x-ray. All opinions should be supported by adequate medical rationale. 3. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. During the pendency of the Veteran’s increased rating claim, the Veteran raised the issue of entitlement to a TDIU due to the residuals of his gunshot wound. The Board takes jurisdiction as the TDIU claim is considered part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has testified that his inability to work stems from his neck and shoulder limitations, the issue of TDIU is inextricably intertwined with the issues on remand. Accordingly, entitlement to a TDIU must be remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA neck conditions examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the neck, to specifically include any neurological conditions. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the July 2019 VA examiner’s finding that a January 2018 chest x-ray identified metallic fragments remaining in the Veteran’s upper torso and identify whether such a condition has a causal relationship to the Veteran’s current neck disability. The examiner should also address the letter from the Veteran’s private physician, Dr. F.D.S., attributing the Veteran’s pain and limitations of motion to residuals of the gunshot wound. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Schedule the Veteran for a VA examination of the left shoulder. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the left shoulder (apart from trapezius strain). Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the July 2019 VA examiner’s finding that a January 2018 chest x-ray identified metallic fragments remaining in the Veteran’s upper torso and identify whether such a condition has a causal relationship to the Veteran’s current shoulder disability. The examiner should also address the letter from the Veteran’s private physician, Dr. F.D.S., attributing the Veteran’s pain and limitations of motion to residuals of the gunshot wound. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.