Citation Nr: 1736559	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO. 02-14 943A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to an evaluation in excess of 10 percent for fragment wound scars of the mouth (cheek and jaw) and nose prior to February 14, 2013. 

2. Entitlement to an evaluation in excess of 10 percent for scars, fragment wounds, of the right thigh, leg, and knee, involving Muscle Group XV. 

3. Entitlement to an evaluation in excess of 10 percent for scars, fragment wounds, of the left thigh, leg, and knee, involving Muscle Group XV. 

4. Entitlement to an initial evaluation in excess of 10 percent for stasis dermatitis associated with fragment wounds involving Muscle Group XV (claimed as cellulitis).

5. Entitlement to an evaluation higher than 30 percent for fragment wound scars of the mouth, (cheek and jaw) and nose from February 14, 2013, forward. 

6. Entitlement to an evaluation higher than 10 percent for left forearm muscle hernia, to include entitlement to an effective date earlier than June 4, 1999, for the grant of service connection. 

7. Entitlement to an evaluation higher than 20 percent for shrapnel wounds of the right shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of clear and unmistakable error (CUE). 

8. Entitlement to an evaluation higher than 20 percent for shrapnel wounds of the left shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE. 

9. Entitlement to a rating in excess of 10 percent for a shrapnel wound scar of the left little finger. 

10. Entitlement to an initial compensable evaluation for temporomandibular joint (TMJ) dysfunction, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection. 

11. Entitlement to a compensable evaluation for fragment wound scars of the abdomen. 

12. Entitlement to an effective date earlier than September 27, 1999, for the grant of a total rating based on individual unemployability due to service-connected disabilities (TDIU). 

13. Entitlement to an effective date earlier than September 27, 1999, for the grant of service connection for posttraumatic stress disorder (PTSD). 

14. Entitlement to a rating in excess of 10 percent for left chest scar. 



REPRESENTATION

Appellant represented by:	Polly Murphy, Attorney


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from September 1964 to September 1968. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). 

In July 2003 and April 2008, the Veteran testified at videoconference hearings before Veterans Law Judges (VLJs). A Travel Board hearing was conducted in June 2011. Transcripts of the hearings have been prepared and incorporated into the evidence of record. In a December 2015 Board decision where two issues were withdrawn and others were remanded, it was noted that the Veteran had requested a Board videoconference hearing as to one issue on appeal. Since then, however, he has filed an additional VA Form 9 dated in June 2016 and has indicated that he does not want such a hearing. Thus, this request is considered withdrawn. 38 C.F.R. § 20.704(e) (2016). 

The long and complex procedural history as to the Veteran's claims was provided in the Board's December 2015 decision and will not be repeated here. It is important to note, however, that at that time, the Veteran's claims for initial evaluations higher than 20 percent for shell fragment wounds (SFWs) of the right and left forearm were dismissed at the request of the appellant. Although these claims were listed again on a subsequently issued supplemental statement of the case (SSOC) in December 2015, the Board will not accept jurisdiction of the withdrawn claims. 

Issues #1 through #3 are discussed in the decision below; issue #4 is herein remanded. All other issues have been withdrawn as requested in a March 2017 statement submitted on the Veteran's behalf by his attorney. 

The Board also notes that the Veteran, through counsel, has argued on multiple occasions-including most recently in a March 2017 statement-that there was clear and unmistakable error in the 1982 rating decision that reduced the evaluation for a fragment wound scar of the left forearm from 10 percent to noncompensable. Despite being referred to the RO in the Board's April 2004 decision, this issue has not been adjudicated by the RO or otherwise developed for appellate consideration. Thus, it is not properly within the Board's jurisdiction at this time. Bernard v. Brown, 4 Vet. App. 384 (1994). The claim of CUE in the 1982 rating decision that reduced the evaluation for a  fragment wound scar of the left forearm from 10 percent to noncompensable is thus again referred to the RO for appropriate action. 


FINDINGS OF FACT

1. In March 2017, prior to promulgation of a decision in the appeal, the Board received notification from the appellant (through his attorney) that a withdrawal of the following appeals was requested: entitlement to an evaluation higher than 30 percent for fragment wound scars of the mouth (cheek and jaw) and nose from February 14, 2013; entitlement to an evaluation higher than 10 percent for left forearm muscle hernia, to include entitlement to an effective date earlier than June 4, 1999, for the grant of service connection; entitlement to an evaluation higher than 20 percent for shrapnel wounds of the right shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE; entitlement to an evaluation higher than 20 percent for shrapnel wounds of the left shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE; entitlement to a rating in excess of 10 percent for a shrapnel wound scar of the left little finger; entitlement to an compensable evaluation for TMJ dysfunction, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection; entitlement to a compensable evaluation for fragment wound scars of the abdomen; entitlement to an effective date earlier than September 27, 1999, for the grant of a TDIU; entitlement to an effective date earlier than September 27, 1999, for the grant of service connection for PTSD; and entitlement to a rating in excess of 10 percent for left chest scar. 

2. Evidence supporting a higher rating for shell fragment wound scars of the mouth (cheek and jaw) and nose as residuals of fragment wounds prior to February 14, 2013, to include visible or palpable tissue loss and either gross distortion of asymmetry of one feature or paired set of features (nose), chin, forehead, eyes, ears, cheeks, lips, or; with two or three characteristics of disfigurement, is not demonstrated. 

3. Moderately severe impairment of function has been shown for the Veteran's scars, fragment wounds, of the right thigh, leg, and knee. 

4. Moderately severe impairment of function has been shown for the Veteran's scars, fragment wounds, of the right thigh, leg, and knee. 


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an evaluation higher than 30 percent for fragment wound scars of the mouth (cheek and jaw) and nose as residuals of fragment wounds from February 14, 2013, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

2. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an evaluation higher than 10 percent for left forearm muscle hernia, to include entitlement to an effective date earlier than June 4, 1999, for the grant of service connection, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

3. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an evaluation higher than 20 percent for shrapnel wounds of the right shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

4. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an evaluation higher than 20 percent for shrapnel wounds of the left shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

5. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a rating in excess of 10 percent for a shrapnel wound scar of the left little finger have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

6. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a compensable evaluation for TMJ, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

7. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a compensable evaluation for fragment wound scars of the abdomen have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

8. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an effective date earlier than September 27, 1999, for the grant of a TDIU have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

9. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an effective date earlier than September 27, 1999, for the grant of service connection for PTSD have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

10. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a rating in excess of 10 percent for left chest scar have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2016). 

11. The criteria for an evaluation in excess of 10 percent for facial scars of the mouth (cheek and jaw) and nose as residuals of fragment wound prior to February 14, 2013, have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156(c), 4.1-4.7, 4.20, 4.118, DC 7800 (effective prior and subsequent to August 30, 2002, and subsequent to October 23, 2008). 

12. The criteria for an evaluation of 20 percent, but no higher, are met for scars, fragment wounds, of the right thigh, leg, and knee, Muscle Group XV. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156(c), 4.1-4.7, 4.20, 4.73, DC 5315 (2016). 

13. The criteria for an evaluation of 20 percent, but no higher, are met for scars, fragment wounds, of the left thigh, leg, and knee, Muscle Group XV. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156(c), 4.1-4.7, 4.20, 4.73, DC 5315 (2016). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissed Appeals

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2016). 

In the present case, the appellant has withdrawn his appeals as to following claims: entitlement to an evaluation higher than 30 percent for fragment wound scars of the mouth (cheek and jaw) and nose from February 14, 2013; entitlement to an evaluation higher than 10 percent for left forearm muscle hernia, to include entitlement to an effective date earlier than June 4, 1999, for the grant of service connection; entitlement to an evaluation higher than 20 percent for shrapnel wounds of the right shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE; entitlement to an evaluation higher than 20 percent for shrapnel wounds of the left shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE; entitlement to a rating in excess of 10 percent for a shrapnel wound scar of the left little finger; entitlement to a compensable evaluation for TMJ dysfunction, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection; entitlement to a compensable evaluation for fragment wound scars of the abdomen; entitlement to an effective date earlier than September 27, 1999, for the grant of a TDIU; entitlement to an effective date earlier than September 27, 1999, for the grant of service connection for PTSD; and entitlement to a rating in excess of 10 percent for left chest scar. 

Hence, as to those claims, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and the issues are dismissed. 

Duties to Notify and Assist as to Remaining Claims

Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA has met its duty to notify for this claim. With respect to the increased rating claims, service connection has been granted. The Veteran is now appealing the downstream issues of the initial ratings. Therefore, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, it has not been argued that appropriate notice was not provided; and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of the claims regarding entitlement to increased evaluations or entitlement to an earlier effective date for the award of a disability rating at this time is warranted. 

The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. 

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) were obtained. VA treatment records and private records are associated with the file. The Board has reviewed the Veteran's statements and testimony and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. 

The Veteran underwent VA examinations on numerous occasions over the years, to include VA scar examinations in 1969, 1992, 1999, 2003, 2013, and 2014 to obtain medical evidence as to the nature and severity of the service-connected scars of the facial region and the lower extremities. The Board finds that the VA examinations are adequate for rating purposes. The examinations were performed by (or for) VA based on a review of the claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. As a whole, the examination reports are accurate and fully descriptive and include assessments of the scars in question or discussion of pertinent muscle group function. The Board finds that for these reasons, the Veteran has been afforded adequate examinations and VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (c)(4) (2016); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

In conclusion, the Board finds that VA's duties to notify and assist the Veteran have been met, so that no further notice or assistance to him is required to fulfill VA's duties. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

Increased Ratings - In General

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2016). 

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 (2016). 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). 

Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Background

The Veteran seeks increased ratings for his service-connected fragment wound scars of the mouth (cheek and jaw) and nose, as well as fragment wound scars to the lower extremities. 

When examined by VA in October 1999, the Veteran related increasing pain in the left knee that he associated with a shell fragment, as well as an inability to kneel or squat. The Veteran also reported swelling, locking, and instability in the left knee. He continued to have pain and instability in the knee. He also had ongoing pain in the thighs. Physical examination revealed "multiple scars" over the lower extremities bilaterally, although he was noted to have good muscle development and strength, with no loss of muscle mass. Specifically, the examiner noted multiple hypopigmented scars on the lower extremities bilaterally, with one 6-cm scar on the right thigh with "a little loss of muscle ... but no hypertrophy." Decreased range of motion of the knees bilaterally was noted, including flexion limited to 60 degrees on the left and limited to 80 degrees on the right, as well as crepitus and tenderness on the left. No instability was noted in either knee. The examiner diagnosed degenerative joint disease in the knees bilaterally, with moderate functional loss due to pain and weakness. No facial scars were reported. 

When examined for VA purposes in January 2003, facial scars were observed to be hypopigmented without keloid formation; the Veteran reported pain with eating and chewing due to imbedded fragments but no functional impairment due to his facial scarring. The total length was noted to be 10 centimeters. The Veteran's multiple lower extremity scars were noted as covering a total measurement of 200 centimeters of scar tissue. The examiner found some of the scars to be disfiguring and tender with adherence of the scars to muscle groups, particular in the left lower extremity, and apparent adhesion of bilateral thigh muscles to bone, along with some contractures, keloid formation, and loss of muscle substance over the thighs. Examination revealed stiffness and weakness of the lower extremities bilaterally. . The Veteran attributed hip dysfunction and limitation of the knees to his shell fragment wounds. The examiner noted that the Veteran's limitation of motion of both thighs and the left knee. Specifically, the examiner noted that flexion of the knees was "limited to about 20 degrees bilaterally." However, in an addendum opinion submitted in February 2003, the examiner noted that the Veteran's flexion of the right knee was to 60 degrees and of the left knee was to 75 degrees, with normal extension to 0 degrees bilaterally. The examiner stated that the Veteran's shrapnel wounds and scars to his lower extremities caused stiffness, weakness, and limited motion in his knees.

In a private physician's April 2011 statement, it was noted that there was X-ray evidence of shell fragment wounds in the legs that were too numerous to count. This affected the Veteran's ability to walk long distances due to scar tissue which bound his muscles. Another residual was pain, weakness, and recurrent swelling in the knees. 

When examined by VA in February 2013, it was noted that the Veteran had facial scars, but they were not painful, unstable, or due to burns. The examiner found that there was one scar on the nose and one on the jaw/cheek, both of which measured 1 x 1 cm. Exam showed no elevation, depression, adherence, to underlying tissue, missing underlying soft tissue, abnormal pigmentation or texture of the head, face, or neck, or gross distortion or asymmetry of facial features or visible or palpable tissue loss. There was no limitation of function. The scars were specifically described. One scar that was located on the Veteran's face measured 1.0 cm in length, 1.0 cm in width. The scar was neither hyperpigmented nor hypopigmented. The scar was smooth on palpation. The texture of the scar was normal. The scar's underlying soft tissue was intact. The scar was soft and flexible, and it was not adherent to underlying tissue. It was not painful. The scar was stable. A second facial scar measured 1.0 cm in length and 1.0 cm in width. It was neither hyperpigmented nor hypopigmented. The scar was smooth on palpation, and the texture was normal. Underlying soft tissue was intact. The scar skin was soft and flexible, and the scar was not adherent to underlying tissue. The scar was not painful, and it was stable. As for the lower extremities, the February 2013 VA report reflects that none of the scars of the extremities were painful, unstable, or due to burns. The right lower extremity was affected by 4 scars. Linear measurement of the scars showed that two were 13 cm in length while the other two were 8 cm. The left lower extremity was not affected by scars. The examiner specifically found that the Veteran's fragment wounds of the lower extremities have not caused muscle disability or residual muscle weakness.

Analysis

During the course of this appeal, on August 30, 2002, and once again on October 23, 2008, new regulations became effective for the evaluation of service-connected skin diseases, and, specifically, scars. Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board will consider both the former and current schedular criteria. However, should an increased rating be warranted under the revised criteria, that award may not be made effective prior to the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) [overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it held that, where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has concluded, the version more favorable to the Appellant will apply.] 

The rating criteria used to evaluate scars are found at 38 C.F.R. § 4.118, DCs 7800 through 7805. Relevant to the current claims, it is noted that the criteria have been amended twice during the course of the appeal. The first amendments became effective August 30, 2002. See 67 Fed. Reg. 49,590 (2002). The second amendments became effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). Initially, the revised criteria effective October 23, 2008, were applicable only to claims received by VA on or after that date. Since then, VA published a correcting amendment to allow Veterans whose scars were rated by VA under the former criteria (versions in effect prior to October 23, 2008) to request evaluation review under the revised criteria. See 77 Fed. Reg. 2909 (January 20, 2012). The correcting amendment specifically encompasses claims that have received an initial rating, and are still pending in the appeals process. Id. The correction is effective January 20, 2012. 

In this case, all relevant rating criteria will be considered, to include the rating criteria in effect prior to and after 2002 and after 2008. Prior to August 30, 2002, DC 7800 provided a noncompensable rating for slight disfiguring scars of the head, face or neck; a 10 percent evaluation was assigned for moderate disfiguring scars of the head, face or neck. Other DCs also provided for 10 percent ratings, namely for superficial scars which were poorly nourished with repeated ulceration (DC 7803); and for scars which were tender and painful on objective demonstration (DC 7804). Under DC 7805, a scar could also be rated based on limitation of function of the part affected. 38 C.F.R. § 4.118, DCs 7800-7805 (2002 and prior). 

Effective August 30, 2002, 10 percent evaluations were assigned for disfigurement of the head, face or neck with one characteristic of disfigurement (DC 7800); for superficial unstable (defined as frequent loss of covering of skin over the scar under Note (2)) scars (DC 7803); and for superficial scars which are painful on examination (DC 7804). As it was under the criteria in effect prior to August 30, 2002, a scar may also be rated based on limitation of function of the part affected (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (2002 and after). 

Effective August 30, 2002, only DC 7800 provided ratings in excess of 10 percent. More specifically a 30 percent rating was assigned for disfigurement of the head, face, or neck 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. 

The Note following DC 7800 established that the eight characteristics of disfigurement, for purposes of evaluation under § 4.118, were: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Note following DC 7803 defined an unstable scar as one where, for any reason, there is frequent loss of covering or skin over the scar; and a superficial scar as one not associated with underlying soft tissue damage. The Note following DC 7804 provided the same definition for superficial scar. See 38 C.F.R. § 4.118 (2008). 

The applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended again in October 2008. Since the regulations were amended on October 23, 2008, DC 7804 provides that a 10 percent rating is warranted when one or two scars are unstable or painful. For a 20 percent rating, there must be three or four scars, and for a 30 percent rating, there must be five or more. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118 (2016). 

Under the rating criteria governing muscle group injuries, a 30 percent rating is assigned for injuries to Muscle Group XV that are severe; a 20 percent rating is assigned for injuries that are moderately severe; and a 10 percent rating is assigned for injuries that are moderate. Functions of muscle Group XV include adduction and flexion of the hip and flexion of the knee. Included in this muscle group are the muscles of the mesial thigh group, which includes the adductor longus, adductor brevis, adductor magnus, and gracilis. 38 C.F.R. § 4.73, DC 5315 (2016). The Veteran's disability is currently rated pursuant to Diagnostic Code 5315 as "moderate," with a 10 percent rating. 

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. 38 C.F.R. § 4.56(c) (2016).

Muscle disability is considered to be moderate if it was caused by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. The history of a moderate muscle disability should include service department records or other evidence of in-service treatment for the wound as well as a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement), particularly, lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective signs of moderate disability include small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue, some 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. 38 C.F.R. § 4.56. (2016).

Muscle disability is considered to be moderately severe if it results from a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. The history of a moderately severe muscle injury should include service department records or other evidence showing hospitalization for a prolonged period for treatment of the wound, consistent complaints of the cardinal signs and symptoms of muscle disability as noted above and, if present, evidence of inability to keep up with work requirements. The objective evidence of a moderately severe muscle disability includes entrance and (if present) exit scars that indicate a track of the missile through one or more muscle groups, the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side, and impairment of strength and endurance in comparison to the sound side. Id.

Severe disability consists of 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. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. Id.

If present, the following are also signs of severe muscle disability: (1) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (2016). 

Turning first to the Veteran's facial scars, the Board finds that for the period in question prior to February 14, 2013, the evidence does not show that the Veteran demonstrated severe disfigurement of the face manifested by symptomatology such as complete deformity and marked and unsightly deformity of the eyelids, lips, or auricles such as to warrant a higher rating under the pre-August 30, 2002 DC 7800. The medical evidence also does not demonstrate disfigurement of the face 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 more characteristics of disfigurement so as to warrant a higher rating under DC 7800, as effective August 30, 2002. Rather, the February 2006 VA medical examiner specifically wrote that the Veteran had no disfiguring skin conditions pertaining to the head, face, or neck and, as a result, color photos were not taken in conjunction with the examination. While it is noted that the January 2003 and March 2003 examiner generally noted that the Veteran's scars were disfiguring, he did not specifically indicate that any disfigurement related to the Veteran's facial scar disability amounted to a degree of disfigurement such as to warrant a higher disability rating. Moreover, there is no objective medical evidence of record relevant to the appeal period showing that the Veteran's facial scar disability was manifested by symptomatology commensurate with a higher rating under DC 7800. Thus, an increased rating under earlier versions of DC 7800 is not warranted for any time during the appeal period. 

In reaching this conclusion, the Board has also considered whether the Veteran is entitled to separate ratings for his facial scars; however, none of the rating criteria contemplates separate ratings for facial scars. Rather, the criteria more generally contemplate disfigurement of the face. Consequently, the assignment of separate disability ratings for the Veteran's facial scars would constitute pyramiding. 38 C.F.R. §§ 4.14 (2016); Esteban v. Brown, 6 Vet. App. 259, 262 (1994); VAOPGCPREC 23-97, VAOPGCPREC 9-98.

The Board has further considered whether the Veteran is entitled to a higher disability rating or ratings under alternate DCs pertaining to scar disabilities. The medical evidence does not show that the scar disability causes any limitation of motion to warrant a higher evaluation under the prior and amended DC 7805. Indeed, the Veteran even reported that he had no functional impairment as a result of his mouth and face injuries at the January 2003 examination.

As the maximum disability rating available under DCs 7803 and 7804 is 10 percent under both the prior and amended schedules, a higher disability rating is not available under those DCs. The Board additionally notes that the facial scars are not shown to have resulted from second or third degree burns such that evaluation of the Veteran's facial scar disability under DC 7801 or 7802 of the prior schedule would be appropriate. Moreover, as his scar disability involves the face, evaluation of the scar disability under DC 7801 or 7802 of the amended schedules would not be appropriate because the schedular criteria specifically excludes consideration of scars of the head, face, or neck.

Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath, supra. However, a review of the record fails to reveal any additional functional impairment associated with the Veteran's facial scar disability prior to February 14, 2013, that warrants further consideration of alternate rating codes.

Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of a higher evaluation for the Veteran's facial scar disability higher than 10 percent prior to February 14, 2013 on a schedular basis under both the old and amended criteria for rating skin disabilities. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b) , the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim here, and that doctrine is not applicable. Gilbert, supra.

As to the Veteran's lower extremities, the Board concludes that the evidence is at least in relative equipoise to warrant an increased rating to 20 percent for service-connected scars as residuals of fragment wounds, of the right and left thighs, legs, and knees, with damage to Muscle Group XV. In this case, the Board finds that the evidence has consistently established that the Veteran's lower extremity disabilities are moderately severe. The rating criteria specifies that the history of a moderately severe disability should include consistent complaints of the cardinal signs and symptoms of muscle disability, which are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2016). Here, the VA examinations in 1999 and 2003, as well as the private evaluation in April 2011, all consistently show that the Veteran has experienced pain, weakness, and loss of power in his lower extremities due to his service-connected fragment wound residuals.  Impairment of coordination has also been shown. In addition, the VA examinations in 1999 and 2003 and the private evaluation in April 2011 all found the Veteran to experience limitation of motion of the knees as a result of his fragment wounds. The Board thus concludes that the Veteran experiences consistent signs and symptoms of a moderately severe muscle disability, warranting a 20 percent rating. 

However, the Board finds that a 30 percent rating is not warranted for the Veteran's lower extremity disabilities. Here, no through-and-through or deep penetrating wound has been shown, nor did the Veteran experience shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There has been no showing of ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; no loss of deep fascia or muscle substance, or soft flabby muscles in the wound area, have been documented, nor does the Veteran experience abnormal swelling and hardening of the muscles in contraction.

In summary, the Board finds that the severity of the Veteran's Group XV muscle injury approximates the criteria set forth in Diagnostic Code 5315 to warrant a 20 percent rating for a moderately severe muscle injury, but no higher, throughout the appeal period.

As a final matter, the Board finds that 38 C.F.R. § 3.156(c) is not for application here. The plain language of section 3.156(c) contemplates an award of service connection based on newly received service department records after a previous final denial of service connection. See, e.g., 38 C.F.R. § 3.156(c)(4) (noting that a "retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence"). In this case, the Veteran's claims for service connection for scars of the face and the lower extremities were granted and ratings assigned in November 1969 based on the record extant at that time, including the service treatment records and results of a VA medical examination. In other words, service connection had been granted in November 1969 at the time of the original claim and not as a result of the receipt of additional, relevant service records. Thus, application of 38 C.F.R. § 3.156(c) in the context of an increased rating claim is not appropriate in this case.


ORDER

The claim for entitlement to an evaluation higher than 30 percent for fragment wound scars of the mouth (cheek and jaw) and nose from February 14, 2013, forward is dismissed. 

The claim for entitlement to an evaluation higher than 10 percent for left forearm muscle hernia, to include entitlement to an effective date earlier than June 4, 1999, for the grant of service connection, is dismissed. 

The claim for entitlement to an evaluation higher than 20 percent for shrapnel wounds of the right shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE, is dismissed. 

The claim for entitlement to an evaluation higher than 20 percent for shrapnel wounds of the left shoulder, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, to include on the basis of CUE, is dismissed. 

The claim for entitlement to a rating in excess of 10 percent for a shrapnel wound scar of the left little finger is dismissed. 

The claim for entitlement to an initial compensable evaluation for TMJ dysfunction, to include entitlement to an effective date earlier than August 27, 2001, for the grant of service connection, is dismissed. 

The claim for entitlement to a compensable evaluation for fragment wound scars of the abdomen is dismissed. 

The claim for entitlement to an effective date earlier than September 27, 1999, for the grant of a total rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. 

The claim for entitlement to an effective date earlier than September 27, 1999, for the grant of service connection for PTSD is dismissed. 

The claim for entitlement to a rating in excess of 10 percent for left chest scar is dismissed. 

Entitlement to a rating in excess of 10 percent for fragment wound scars of the mouth (cheek and jaw) and nose prior to February 14, 2013, is denied. 

Entitlement to a rating of 20 percent for scars, fragment wounds of the right thigh, leg, and knee, is granted. 

Entitlement to a rating of 20 percent for scars, fragment wounds of the left thigh, leg, and knee, is granted. 


REMAND

With regard to the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent for stasis dermatitis associated with fragment wounds involving Muscle Group XV (claimed as cellulitis), a May 2016 rating decision service connection for stasis dermatitis and assigned an initial 10 percent rating. The Veteran filed a notice of disagreement in July 2016 regarding the initial rating assigned. Where a notice of disagreement has been filed with regard to a claim, and a statement of the case has not been issued concerning that claim, the appropriate Board action is to remand the claim for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case which addresses the issue of entitlement to an initial evaluation in excess of 10 percent for stasis dermatitis associated with fragment wounds involving Muscle Group XV (claimed as cellulitis). Inform the Veteran that he must file a substantive appeal if he desires appellate review of the issue. Thereafter, the case should be returned to the Board only if he perfects an appeal as to the issue.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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