Citation Nr: 21010187 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-22 950A DATE: February 24, 2021 ORDER An increased rating greater than 40 percent for residuals of a shell fragment wound of the neck is denied. FINDING OF FACT The Veteran is in receipt of the highest available schedular rating for impairment of his neck and shoulder under Diagnostic Code 5301. The Veteran has not stated, and the evidence does not indicate that he is entitled to an extraschedular rating for residuals of a shell fragment wound of the neck. CONCLUSIONS OF LAW The criteria for a rating in excess of 40 percent rating for residuals of a shell fragment wound of the neck have not been met. 38 U.S.C. § 1155, 38 C.F.R. §§ 4.14, 4.56, 4.73, Diagnostic Code (DC) 5301. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. It was originally before the Board on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA). In a February 2019 decision, the Board granted a disability rating of 20 percent (but no higher) for residuals of a shell fragment wound of the neck. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In November 2019, the Veterans Court granted an October 2019 Joint Motion for Partial Remand (JMR) which vacated the Board’s decision and remanded the matter for further appellate consideration. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. These issues were returned to the Board in July 2020 and were remanded for further development. An increased rating greater than 40 percent for residuals of a shell fragment wound of the neck is denied. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s service-connected disability of residuals of a shell fragment wound of the neck is contemplated by DC 5301 for Muscle Group I. Muscle Group I encompasses the muscles arising from the extrinsic muscles of the shoulder girdle. The functions of these muscles include upward rotation of the scapula and elevation of the arm above shoulder level. Under DC 5301 (for the dominant arm), a noncompensable rating is warranted if impairment of Muscle Group I is slight; a 10 percent rating is warranted if impairment of this muscle group is moderate; a 30 percent rating is warranted if impairment of this muscle group is moderately severe; and a maximum rating of 40 percent is warranted if there is severe impairment. 38 C.F.R. § 4.73, DC 5301. Factual Background While this issue was in remand status, the RO elected to increase the Veteran’s evaluation of residuals of a shell fragment wound of the neck from 20 percent to 40 percent effective October 1, 2010. See November 2020 rating decision. Analysis The Board notes that the Veteran is in receipt of the highest available schedular rating for impairment of his neck and shoulder under DC 5301. Moreover, because the evidence does not raise entitlement to an extraschedular rating for residuals of a shell fragment wound of the neck, and the Veteran has not stated otherwise, the Board need not consider whether such a rating is warranted. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). (Continued on the next page)   The Court has noted that the Board should consider whether other diagnostic codes would be appropriate to rate the Veteran and noted the Veteran may have shell fragment wounds of the back. In a November 2020 rating decision, the RO granted service connection for cervical spine degenerative arthritis with an evaluation of 20 percent effective October 1, 2010 and service connection for a scar behind the right ear, residuals of a shrapnel wound with an evaluation of 10 percent effective October 1, 2010. These disabilities are the subject of a separate November 2020 rating decision which has not been appealed to the Board. As such, the Board lacks jurisdiction over these separate disabilities. Accordingly, the Board finds that the appeal in this matter must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.