Citation Nr: 0001647	
Decision Date: 01/20/00    Archive Date: 01/28/00

DOCKET NO.  94-38 037	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, 
Philippines


THE ISSUE

Entitlement to an evaluation in excess of the currently 
assigned 20 percent for service-connected residuals of a 
shrapnel wound to the right shoulder with a retained metallic 
foreign body and injury to Muscle Group III.


ATTORNEY FOR THE BOARD

J.M. Daley, Associate Counsel


INTRODUCTION

The veteran had recognized service from December 1944 to 
March 1946.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO), located in 
Manila, Philippines.


FINDING OF FACT

The competent and probative evidence of record shows that 
residuals of a shrapnel wound to the right shoulder consist 
of a retained metallic foreign body, a healed scar, and 
injury to Muscle Group III causing a limitation of right 
shoulder motion due to pain and stiffness that is no more 
than moderately disabling.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for 
service-connected residuals of a shrapnel wound to the right 
shoulder, with a retained metallic foreign body and injury to 
Muscle Group III, have not been met.  38 U.S.C.A. §§ 1155, 
5107(b) (West 1991); 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 
5303 (1999).


REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background

Available service records indicate incurrence of a shrapnel 
wound to the right shoulder, without detailed clinical 
findings or diagnoses.  

A private record dated in July 1965 includes note of partial 
immobility of the right shoulder joint residual to a shrapnel 
wound.  

In March 1991, the veteran presented for a VA examination.  
Examination revealed a healed scar on the right shoulder "w/ 
tenderness; adherent, depressed" and "severe" limitation 
of right shoulder motion.  The examiner stated that no motion 
was possible due to pain.  No neurologic deficit was noted.  
An X-ray revealed a metallic foreign body in the right 
shoulder girdle and an osseous fragment, the latter stated to 
possibly be from the spinous process of the scapula.  The 
impression was shrapnel wound to the right shoulder with 
metallic foreign body and osseous fragment.  A photograph was 
taken at that time and the veteran's signature was obtained.  

In a rating decision dated in November 1993, the RO 
established service connection for residuals of a shrapnel 
wound to the right shoulder, and assigned a 20 percent 
evaluation, effective October 18, 1989, the date of the 
veteran's reopened claim.  The RO stated that although there 
was a finding of severe limitation of motion at the time of 
1991 examination, the corresponding radiologic evidence was 
incompatible with examination findings, showing no malunion, 
nonunion or any bone deformity to produce such a degree of 
limitation.  The RO stated that the assigned evaluation was 
based on moderate muscle injury to the shoulder.

In a statement received in January 1994, the veteran stated 
that his right arm was his major extremity.

The claims file contains a private medical record dated in 
April 1994, noting severe traumatic arthritis of the right 
shoulder, severe neuritis and right shoulder arm syndrome.  A 
report of x-ray indicates the presence of a foreign body 
lodged at the synovial cavity, at the superior border of the 
right humeral head.

In a statement received in April 1994, the veteran stated 
that due to his right shoulder he was not able to work after 
the war and that the pain in his shoulder affected his entire 
body.  He argued that he warranted assignment of a 100 
percent rating, with unemployability.  In his substantive 
appeal, received in September 1994, the veteran presented 
argument relevant to his pain and his reduced employment 
capacity.  He again argued that he is right-handed.  The 
veteran also presented argument to the effect that physicians 
had advised him that removal of the retained fragment could 
result in paralysis.

The veteran's signature appears on a statement dated as late 
as April 1996.

In September 1996, subsequent to the RO's requests for 
release of private medical evidence and requests that the 
veteran report for a VA examination, the Board remanded the 
claim to ensure that every attempt was made to associate 
relevant records and that the veteran was properly notified 
of the need for examination and informed of the consequences 
of his failure to report for such.  Thereafter, the RO again 
requested the veteran to provide evidence and/or release 
pertinent to treatment and/or evaluation by private 
physicians; he did not respond.  The RO further scheduled the 
veteran for a VA examination in July 1997 and advised him of 
the same.  The veteran failed to report, but, in a statement 
received in August 1997, he requested that the examination be 
rescheduled.  He reported that he had been hospitalized due 
to a swollen right shoulder affecting the right half of his 
body, and had been released in December 1996.  He stated that 
he had been unable to move due to the pain.  His son signed 
on his behalf, identifying the veteran as a bedridden 
claimant.  

In October 1997, the veteran reported for a VA examination, 
with subjective complaints of right shoulder pain and 
limitation of motion.  The VA examiner reviewed the claims 
file.  It was noted that the veteran had suffered a 
cerebrovascular accident in 1996, resulting in paralysis on 
the right half of his body.  The examiner noted that the 
veteran's right shoulder was stiff and the right upper 
extremity muscles were atrophied, with contraction of the 
right hand.  The examiner identified damage to Muscle Group 
III and noted a scar near the coracoid process of the right 
shoulder.  There was no noted damage to the tendons, bones, 
joints or nerves.  There was no evidence of adhesions.  
Strength was stated to be Grade 0 due to hemiparesis on the 
right side of the body.  The examiner indicated that there 
was pain with motion.  The examiner concluded that "[i]t 
would be difficult to differentiate whether weakness, 
stiffness, incoordination..." were secondary to the shrapnel 
wound or to the veteran's stroke, but summarized that the 
right upper extremity was completely flail and that the right 
shoulder and hand were stiff.  Photographs of the veteran in 
a supine position were taken at that time and he signed with 
his left thumbprint.  

In November 1997, the RO again asked the veteran to comply 
with the request for release of hospital records pertinent to 
his May and December 1996 hospitalization; the veteran did 
not respond.  In July 1998, the Board again remanded the 
claim to obtain private records relevant to the veteran's 
right-sided stroke, and for VA examination to distinguish the 
residuals of a shrapnel wound from stroke residuals.  The RO 
provided the veteran with release forms for the medical care 
providers in question.  He did not respond, nor did he report 
for examinations scheduled in February 1999.

Of record is a private physician's statement dated in June 
1999.  The physician advised that the veteran's present 
condition had started three years "PTC" as right sided body 
paralysis associated with right shoulder and other joint 
pains for which he had taken various medications and physical 
therapy had been recommended.  The relevant impression was 
cerebrovascular disease (CVD), old, probably thrombotic, left 
"MCA" with right hemiplegia.  The physician also noted the 
veteran had flexion contractures and degenerative joint 
disease with multiple joint involvement.

A VA examination was rescheduled for June 1999.  Photographs 
of the veteran taken at that time demonstrate him to be in a 
supine position.  The report of VA joints examination, dated 
in June 1999, notes subjective complaints of right shoulder 
stiffness, without complaints of dislocation or recurrent 
subluxation.  The orthopedic examiner noted that the veteran 
had had a stroke in 1996, and that since that time he had had 
difficulty using his right upper extremity, with marked 
stiffness of his right shoulder and elbow and development of 
contractures in the hand.  The examiner further noted that 
the veteran had been bedridden ever since.  The veteran had 
zero to 40 degrees shoulder flexion, zero to 70 degrees 
abduction, rotation, both external and internal from zero to 
20 degrees, and elbow flexion from 30 to 90 degrees.  The 
examiner noted atrophy of the right shoulder muscles and an 
entry wound in the intraclavicular area of the right 
shoulder.  The examiner further noted marked stiffness of the 
right hand.  The orthopedic examiner commented that the long-
term effect of the wound to the right shoulder should be 
stiffness due to prolonged immobilization and lack of 
exercise and post traumatic arthritis with a foreign body 
inside the joint.  However, the examiner commented that prior 
to the stroke the veteran was able to write, and able to move 
his shoulder, hands, and elbows, but that the stiffness 
became more marked, especially over the fingers, after the 
stroke.  The orthopedic examiner concluded that if the stroke 
had not occurred, the veteran would have had a "slight 
deterioration of function of the shoulder, but this was 
markedly aggravated by the stroke."

The June 1999 report of VA muscle examination notes damage to 
Muscle Group III.  The examiner noted no sensitivity or 
tenderness to the scar, and no adhesions or tendon damage.  
The veteran's muscle strength was stated to be Grade 3/5.  
The examiner commented that there was a loss of muscle 
function secondary to stroke.  

The June 1999 report of neurologic examination notes that the 
right upper and lower extremities were less active than on 
the left; that the veteran had contractures of the elbow and 
hand on the right upper extremity; and that he responded to 
gross pain stimuli on all four extremities.  The diagnosis 
was status post cerebral infarction on the left with 
contractures, and that there was no evidence of weakness of 
the right upper extremity prior to the veteran's stroke based 
on review of previous examination and pictures on file.

Pertinent Criteria

Handedness for the purpose of a dominant rating will be 
determined by the evidence of record, or by testing on VA 
examination.  Only one hand shall be considered dominant.  
The injured hand, or the most severely injured hand, of an 
ambidextrous individual will be considered the dominant hand 
for rating purposes.  38 C.F.R. § 4.69 (1999).

In considering the residuals of injury, it is essential to 
trace the medical-industrial history of the disabled person 
from the original injury, considering the nature of the 
injury and the attendant circumstances, and the requirements 
for, and the effect of, treatment over past periods, and the 
course of the recovery to date.  38 C.F.R. § 4.41 (1999).  
Evaluation of injury includes consideration of resulting 
impairment to the muscles, bones, joints and/or nerves, as 
well as the deeper structures and residual symptomatic 
scarring.  See 38 C.F.R. §§ 4.44, 4.45, 4.47, 4.48, 4.49, 
4.50, 4.51, 4.52, 4.53, 4.54 (1999).

Muscle Group damage is categorized as mild, moderate, 
moderately severe and/or severe and evaluated accordingly.  
38 C.F.R. § 4.56.  In that regard, the Board is aware that 
the rating criteria for muscle group injuries were changed, 
effective July 3, 1997.  See 38 C.F.R. §§ 4.55-4.73 
Diagnostic Codes 5301-5329; 38 C.F.R. §§ 4.47-4.54, 4.72 were 
removed and reserved).  The defined purpose of these changes 
were to incorporate updates in medical terminology, advances 
in medical science, and to clarify ambiguous criteria.  The 
comments also clarify that these were not intended as 
substantive changes.  See 62 Fed. Reg. No. 106, 30235-30237.  

As revised, 38 C.F.R. § 4.56 now provides as follows:

(a) An open comminuted fracture with 
muscle or tendon damage will be rated as 
a severe injury of the muscle group 
involved unless, for locations such as in 
the wrist or over the tibia, evidence 
establishes that the muscle damage is 
minimal; 

(b) A through-and-through injury with 
muscle damage shall be evaluated as no 
less than a moderate injury for each 
group of muscles damaged; 

(c) 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; 

(d) Under Diagnostic Codes 5301 through 
5323, disabilities resulting from muscle 
injuries shall be classified as slight, 
moderate, moderately severe or severe as 
follows: 

(1) Slight disability of muscles.  (i) 
Type of injury.  Simple wound of muscle 
without debridement or infection.  (ii) 
History and complaint.  Service 
department record of superficial wound 
with brief treatment and return to duty.  
Healing with good functional results.  No 
cardinal signs or symptoms of muscle 
disability as defined in paragraph (c) of 
this section.  (iii) Objective findings.  
Minimal scar.  No evidence of fascial 
defect, atrophy, or impaired tonus.  No 
impairment of function or metallic 
fragments retained in muscle tissue.  

(2) Moderate disability of muscles.  (i) 
Type of injury.  Through and through or 
deep penetrating wound of short track 
from a single bullet, small shell or 
shrapnel fragment, without explosive 
effect of high velocity missile, 
residuals of debridement, or prolonged 
infection.  (ii) History and complaint.  
Service department record or other 
evidence of in-service treatment for the 
wound.  Record of consistent complaint of 
one or more of the cardinal signs and 
symptoms of muscle disability as defined 
in paragraph (c) of this section, 
particularly lowered threshold of fatigue 
after average use, affecting the 
particular functions controlled by the 
injured muscles.  (iii) Objective 
findings.  Entrance and (if present) exit 
scars, small or linear, indicating short 
track of missile through muscle tissue.  
Some loss of deep fascia or muscle 
substance or impairment of  muscle tonus 
and loss of power or lowered threshold of 
fatigue when compared to the sound side.  

(3) Moderately severe disability of 
muscles.  (i) Type of injury.  Through 
and through or deep penetrating wound by 
small high velocity missile or large low-
velocity missile, with debridement, 
prolonged infection, or sloughing of soft 
parts, and intermuscular scarring.  
(ii) History and complaint.  Service 
department record or other evidence 
showing hospitalization for a prolonged 
period for treatment of wound.  Record of 
consistent complaint of cardinal signs 
and symptoms of muscle disability as 
defined in paragraph (c) of this section 
and, if present, evidence of inability to 
keep up with work requirements.  (iii) 
Objective findings.  Entrance and (if 
present) exit scars  indicating track of 
missile through one or more muscle 
groups.  Indications on palpation of loss 
of deep fascia, muscle substance, or 
normal firm resistance of muscles 
compared with sound side.  Tests of 
strength and endurance compared with 
sound side demonstrate positive evidence 
of impairment.

(4) Severe disability of muscles.  (i) 
Type of injury.  Through and through or 
deep penetrating wound due to high-
velocity missile, or large or multiple 
low velocity missiles, or with shattering 
bone fracture or open comminuted fracture 
with extensive debridement, prolonged 
infection, or sloughing of soft parts, 
intermuscular binding and scarring.  (ii) 
History and complaint.  Service 
department record or other evidence 
showing hospitalization for a prolonged 
period for treatment of wound.  Record of 
consistent complaint of cardinal signs 
and symptoms of muscle disability as 
defined in paragraph (c) of this section, 
worse than those shown for moderately 
severe muscle injuries, and, if present, 
evidence of inability to keep up with 
work requirements.  (iii) Objective 
findings.  Ragged, depressed and adherent 
scars indicating wide damage to muscle 
groups in missile track.  Palpation shows 
loss of deep fascia or muscle substance, 
or soft flabby muscles in wound area.  
Muscles swell and harden abnormally in 
contraction.  Tests of strength, 
endurance, or coordinated movements 
compared with the corresponding muscles 
of the uninjured side indicate severe 
impairment of function.  If present, the 
following are also signs of severe muscle 
disability: (A) X-ray evidence of minute 
multiple scattered foreign bodies 
indicating intermuscular trauma and 
explosive effect of the missile.  (B) 
Adhesion of 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 bone is normally 
protected by muscle.  (C) Diminished 
muscle excitability to pulsed electrical 
current in electrodiagnostic tests. (D) 
Visible or measurable atrophy.  (E) 
Adaptive contraction of an opposing group 
of muscles.  (F) Atrophy of muscle groups 
not in the track of the missile, 
particularly of the trapezius and 
serratus in wounds of the shoulder 
girdle.  (G) Induration or atrophy of an 
entire muscle following simple piercing 
by a projectile.

38 C.F.R. § 4.56.  


In pertinent part, 38 C.F.R. § 4.55, as amended at 62 Fed. 
Reg. 30235 (June 3, 1997), is as follows:

(a) A muscle injury rating will not be 
combined with a peripheral nerve 
paralysis rating of the same body part, 
unless the injuries affect entirely 
different functions.

(b) For rating purposes, the skeletal 
muscles of the body are divided into 23 
muscle groups in 5 anatomical regions...6 
muscle groups for the shoulder girdle and 
arm (Diagnostic Codes 5301 through 5306); 
3 muscle groups for the forearm and hand 
(Diagnostic Codes 5307 through 5309)....

(c) There will be no rating assigned for 
muscle groups which act upon an ankylosed 
joint, with the following exceptions: 

...(2) In the case of an ankylosed 
shoulder, if muscle groups I and II are 
severely disabled, the evaluation of the 
shoulder joint under Diagnostic Code 5200 
will be elevated to the level for 
unfavorable ankylosis, if not already 
assigned, but the muscle groups 
themselves will not be rated.

(d) The combined evaluation of muscle 
groups acting upon a single unankylosed 
joint must be lower than the evaluation 
for unfavorable ankylosis of that joint, 
except in the case of Muscle Groups I and 
II acting upon the shoulder.

(e) For compensable muscle group injuries 
which are in the same anatomical region 
but do not act on the same joint, the 
evaluation for the most severely injured 
muscle group will be increased by one 
level and used as the combined evaluation 
for the affected muscle groups.

(f) For muscle group injuries in 
different anatomical regions which do not 
act upon ankylosed joints, each muscle 
group injury shall be separately rated 
and the ratings combined under the 
provisions of 38 C.F.R. § 4.25 (1999).

38 C.F.R. § 4.73, Diagnostic Code 5303 pertains to impairment 
of Muscle Group III, consisting of the pectoralis major or 
clavicular muscle and the deltoid.  Such function with 
respect to the elevation and abduction of the arm to level of 
shoulder; and, act with the pectoralis major and the 
latissimus dorsi and teres major of Muscle Group II in 
forward and backward swinging of the arm.  A zero percent 
evaluation is warranted for slight impairment of either the 
major or minor extremity.  A 20 percent evaluation is 
warranted for moderate impairment of either arm, or for 
moderately severe impairment of the minor arm.  A 30 percent 
evaluation is warranted for moderately severe impairment of 
the major arm, and for severe impairment of the minor arm.  A 
40 percent evaluation is warranted for severe impairment of 
the major arm.  Id.

Also relevant to the instant appeal is 38 C.F.R. § 4.71a.  
Under the laws administered by VA, disabilities of the 
shoulder and arm are rated under Diagnostic Codes 5200 
through 5203 (1999):  

Diagnostic Code 5200 rates favorable ankylosis of the 
scapulohumeral joint with abduction to 60 degrees, reaching 
the mouth and head, as 30 percent for the major arm.  
Ankylosis that is intermediate between favorable and 
unfavorable ankylosis warrants a 40 percent evaluation.  
Unfavorable ankylosis with abduction limited to 25 degrees is 
assigned a 50 percent evaluation.  38 C.F.R. § 4.71a, 
Diagnostic Code 5200.

Diagnostic Code 5201 provides that limitation of motion of 
the major arm at shoulder level warrants a 20 percent 
disability rating.  Limitation of motion of the major arm 
midway between the side and shoulder level warrants a 30 
percent disability rating.  When motion is limited to 25 
degrees from the side a 40 percent rating is warranted.  38 
C.F.R. § 4.71a, Diagnostic Code 5201.
Normal ranges of upper extremity motion are defined by VA 
regulation as follows: forward elevation (flexion) from zero 
to 180 degrees; abduction from zero to 180 degrees; and 
internal and external rotation to 90 degrees.  See 38 C.F.R. 
§ 4.71, Plate I (1999).

38 C.F.R. § 4.71a, Diagnostic Code 5202 pertains to other 
impairment of the humerus.  A 20 percent evaluation is 
warranted for impairment of the major extremity caused by 
malunion resulting in moderate deformity, or by infrequent 
episodes of dislocation at the scapulohumeral joint and 
guarding of movement at the shoulder level.  Frequent 
episodes of dislocation and guarding of all arm movements 
warrants assignment of a 30 percent evaluation.  A 50 percent 
evaluation is assigned where there is fibrous union, a 60 
percent evaluation is warranted for nonunion or a false flail 
joint, and an 80 percent evaluation is warranted for loss of 
the humeral head (a flail shoulder).

38 C.F.R. § 4.71a, Diagnostic Code 5203 pertains to 
impairment of the clavicle or scapula.  A maximum 20 percent 
evaluation is warranted for clavicular or scapular 
dislocation.

38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999) applies to 
traumatic arthritis and provides that such is evaluated based 
on limitation of motion of the affected part, like 
degenerative arthritis.  See 38 C.F.R. § 4.71a, Diagnostic 
Code 5003 (1999).  Where the limitation of motion of the 
specific joint or joints involved is noncompensable, under 
the applicable diagnostic codes, a rating of 10 percent is 
warranted where arthritis is shown by x-ray and where 
limitation of motion is objectively confirmed by evidence of 
swelling, muscle spasm, or painful motion.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5003 (1999).

38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 7805 
(1999) pertain to scars.  A 10 percent evaluation is 
warranted for superficial, poorly nourished scars with 
repeated ulceration under Diagnostic Code 7803.  Diagnostic 
Code 7804 provides that a 10 percent disability evaluation is 
warranted for superficial scars that are tender and painful 
on objective demonstration.  Diagnostic Code 7805 otherwise 
provides that a rating for scars is based upon the limitation 
of function of the affected part.  38 C.F.R. § 4.118.

Pyramiding, that is 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 (1999).  It 
is possible for a veteran to have separate and distinct 
manifestations from the same injury which would permit rating 
under several diagnostic codes.  The critical element in 
permitting the assignment of several ratings under various 
diagnostic codes is that none of the symptomatology for any 
one of the conditions is duplicative or overlapping with the 
symptomatology of the other condition.  See Esteban v. Brown, 
6 Vet. App. 259, 261-62 (1994).  

Analysis

In general, allegations of increased disability are 
sufficient to establish well-grounded claims seeking 
increased ratings.  Proscelle v. Derwinski, 2 Vet. App. 629 
(1992).  In the instant case, there is no indication that 
there are additional records which have not been obtained and 
which would be pertinent to the present claims.  To the 
extent that the claims file suggests the existence of 
potentially relevant private records, the veteran has been 
requested to provide release for them, but did not respond.  
See Counts v. Brown, 6 Vet. App. 473 (1994).  The Board also 
notes that the veteran has recently been examined in 
connection with his claim.  Thus, no further development is 
required in order to comply with VA's duty to assist mandated 
by 38 U.S.C.A. § 5107(a).

The veteran claims that his in-service injury to his right 
shoulder was so severe that he was unable to work subsequent 
to service.  He is currently assigned a 20 percent evaluation 
under Diagnostic Code 5303.  Under that code a 20 percent 
evaluation for the major arm, the veteran's right arm, 
contemplates moderate muscle impairment affecting arm motion.  
Pertinent to muscle injuries, the Board first notes that 
pursuant to VAOPGCPREC 11-97 (March 25, 1997), where a 
regulation is amended during the pendency of an appeal to the 
Board, the Board must first determine whether the amended 
regulation is more favorable to the claimant than the prior 
regulation, and, if it is, the Board must apply the more 
favorable provision.  See Dudnick v. Brown, 9 Vet. App. 397 
(1996) (per curiam); Karnas v. Derwinski, 1 Vet. App. 308 
(1991).  After review of the provisions in effect prior to 
July 3, 1998, and the new criteria effective thereafter, the 
Board finds that there is no substantive difference between 
the applicable provisions, that neither of the criteria is 
deemed to be more favorable to the veteran than the other, 
and the Board therefore will apply the new criteria.

In the instant case no detailed records created contemporary 
to the veteran's injury are available; thus, evaluation must 
be based on available service medical notations alongside 
subsequent results of examination and evaluation of his right 
upper extremity.  Unfortunately, the history of the veteran's 
disability status remains unclear even with review of 
available records.  The earliest, relevant, post-service 
record in the existing claims file notes only partial 
immobility of the right shoulder joint, without setting out 
specific degrees of motion, or findings pertinent to muscle, 
bone or other impairment.  Such does not, therefore, serve as 
sufficient evidence to warrant assignment of more than a 20 
percent evaluation under the schedular criteria pertinent to 
limitation of arm motion or muscle injuries.  

The first comprehensive examination findings of record, dated 
in 1991, also do not include motion ranges; rather, the VA 
examiner indicated that, due to pain, no motion was possible.  
That examiner did not comment on any other factors 
contemplated under 38 C.F.R. §§ 4.56, 4.73, such as atrophy, 
weakness, incoordination and did not indicate a pathology 
other than pain that would impact the veteran's motion.  The 
private record, dated in April 1994, similarly does not 
include motion ranges.  

Notably, one of the VA examination reports dated in June 1999 
indicated right shoulder motion limited only to 40 degrees 
flexion and 70 degrees abduction, below shoulder level.  Such 
findings are based on examination reportedly conducted after 
the veteran was paralyzed from a stroke.  The Board has 
considered the 1991 notation that the veteran had no shoulder 
motion due to pain, but finds that conclusion to be 
unsupported by the evidence of record.  However, the 1991 VA 
examiner did not identify any pathology relevant to the 
veteran's shoulder in terms of changes in the muscle, bone or 
nerve structures.  Nor did that examiner comment on such 
factors as atrophy, weakness, or incoordination.  The 1965 
findings showed only partial immobilization of the shoulder, 
not total.  Also significant is the veteran's apparent lack 
of treatment for his right upper extremity for many years 
after service.  Also, by his own report, he was able to write 
with his right hand prior to his stroke, indicating some 
movement.  Moreover, the June 1999 examination reports 
contain opinions that prior to his stroke the veteran 
probably suffered from no weakness and only slight 
deterioration of shoulder function.  Those reports indicate 
that based on the veteran's history, photographs and other 
medical evidence, his stroke exacerbated his right shoulder 
symptoms, and that it was the stroke that led to right-sided 
paralysis.  Thus, there is no competent and probative 
evidence showing that the service-connected disability is 
manifested by loss of motion significant enough to warrant 
assignment of more than a 20 percent evaluation under 
Diagnostic Codes 5201, 5303.  

With regard to the muscle codes, Diagnostic Code 5303 
provides for a 20 percent evaluation where there is moderate 
muscle damage.  Evidence of record notes symptoms of 
stiffness and limited motion residual to the shell fragment 
wound, without notation of factors attributable to muscle 
impairment.  Rather, the competent evidence, to include the 
June 1999 examination reports, again indicates that the 
veteran's stroke resulted in right-sided hemiparesis, 
weakness, fatigue, stiffness, etc.  Such symptoms are not 
attributable to the veteran's service-connected disability 
and thus cannot be the basis upon which to assign a higher 
evaluation.  See 38 C.F.R. § 4.73.  The Board also notes that 
the competent and probative evidence is absent findings of an 
open comminuted fracture mandating assignment of a percentage 
evaluation for severe disability.  See 38 C.F.R. § 4.56.

The Board further notes that although examination in 1991 
noted some tenderness and adherence of the veteran's shell 
fragment wound scar, the examiner indicated that the scar was 
healed.  Available subsequent records are consistent in 
showing the veteran's scar to be asymptomatic.  Thus, no 
increased or separate evaluation is warranted based on 
scarring.  See 38 C.F.R. § 4.14.  Also, there is no competent 
evidence of nerve involvement coincident with the veteran's 
service injury, subsequent neurologic pathology to support a 
finding of nerve impairment, or a competent opinion showing 
that the veteran had neurologic impairment attributable to 
the gunshot wound to warrant consideration under 38 C.F.R. 
§ 4.124a (1999).  Consideration has also been given to the 
potential application of the various provisions of 38 C.F.R. 
Parts 3 and 4 (1999), whether or not they were raised by the 
veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 
589 (1991).  However, the Board finds no basis upon which to 
assign a higher disability evaluation.  


ORDER

An evaluation in excess of 20 percent for service-connected 
residuals of a shrapnel wound to the right shoulder with a 
retained metallic foreign body and injury to Muscle Group 
III, is denied.



		
	JANE E. SHARP
	Member, Board of Veterans' Appeals