BVA9504958 DOCKET NO. 93-13 688 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased evaluation for residuals of a gunshot wound of the left chest and left shoulder, currently rated, in combination, as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from February 1941 to September 1942. This appeal is before the Board of Veterans' Appeals (the Board) from a June 1992 rating decision of the Regional Office (RO) which denied increased evaluation for residuals of gunshot wounds to the left chest and shoulder, currently rated as 50 percent combined. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected gunshot wound residuals of the of the left chest and left shoulder have increased in severity so as to warrant a higher disability evaluation than the combined 50 percent rating currently assigned. Attention is directed to the hearing testimony and to the medical evidence on file. The veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased evaluation for gunshot wound residuals of the left chest and left shoulder. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran incurred a gunshot wound to the left chest as a result of an accidental shooting in April 1942. 3. Current findings of the veteran's pleural cavity disability include complaints of pain and shortness of breath, dyspnea on moderate exertion, thickened pleura, elevated diaphragm, slightly narrowed intercostal spaces, and moderately decreased lung capacity; severe impairment is not demonstrated. 4. Current findings of the left shoulder muscle group disability include residual scarring, complaints of pain and weakness, with moderate limitation of motion and some loss of strength; findings commensurate with moderate muscle damage to Muscle Group II of the minor extremity are demonstrated. 5. The veteran's service-connected disability does not produce an exceptional or unusual disability picture with related factors such as need for frequent hospitalization or marked interference with employment such as to render application of the regular schedular provisions impractical. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the residuals of a gunshot wound to the left shoulder manifested by muscle damage have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.41, 4.47-4.56, 4.72, 4.73, Code 5302 (1994). 2. The criteria for an evaluation in excess of 40 percent for the residuals of a gunshot wound to the pleural cavity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.97, Code 6818 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent period of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. VA regulations provide that when injury residuals involve both the pleural cavity and the shoulder girdle muscles, the residuals shall be separately evaluated for each and combined. 38 C.F.R. § 4.97, Code 6818, Note (1). In addition, regulations provide that any analysis of the disability evaluation to be assigned for the residuals of a missile injury must begin with a historical review of the extent of the original traumatic injury, and the course of the residual disability in the ensuing years. See 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.41, 4.47-4.56, 4.72; Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Historically, the veteran sustained a gunshot wound to the left chest and lung when he was accidentally shot by a fellow soldier in April 1942. The bullet entered at about the sixth anterior interspace and exited at about the eighth posterior interspace. The veteran was hospitalized for a significant period of time; at discharge the relevant diagnoses were: hemopneumothorax, left, moderate; fracture, comminuted, ribs 8 & 9; pleurisy, fibrinous, chronic, moderate, left, visceral and parietal pleura. The veteran was originally assigned a 50 percent disability rating for the residuals of the gunshot wound of the left chest in a December 1942 rating decision. Following a VA medical examination, the disability evaluation was reduced to 30 percent in a June 1943 rating decision. Following a VA medical examination, the veteran's disability rating was increased to 60 percent in a March 1948 rating decision. After another VA examination, the rating was decreased to 40 percent in a June 1950 rating decision. In a September 1951 decision of the Board, effectuated by a rating decision that same month, it was held that the pleural cavity injury should be rated 40 percent disabling, and that a separate 20 percent rating should be assigned for damage to the shoulder girdle muscle, Muscle Group II. These ratings are currently in effect as ratings that are protected from reduction. 38 U.S.C.A. § 110. Medical records from the veteran's private physicians and a private hospital, dated in the 1970's indicate that the veteran was treated for duodenal ulcer and hypertension. It was noted that hypertensive heart disease was suspected. The veteran was afforded a VA medical examination in December 1978. The examination report noted that the entry and exit scars from the gunshot wound were well healed. The left shoulder was down and muscle substance was slightly less on the left than on the right. However, there was full range of motion. Examination of the lungs revealed dullness and decreased breath sounds over the entire left chest. The diaphragm was up. Pulmonary function tests revealed that vital capacity was 1.93 liters. The impression on spirometry was restrictive ventilatory defect. A chest X-ray showed complete pleural calcification of the left side. The final diagnostic impression was fibrothorax. A discharge summary report from a private hospital, dated in January 1980, indicated that the veteran was admitted for a few days for evaluation and treatment of chest pain. A history of hypertension was noted. He was treated with Morphine and had no further symptoms. It was felt that the chest pain was probably gastrointestinal in origin. The final diagnoses were: acute gastritis, hypertensive heart disease, and essential hypertension. Medical records from a private physician, dated in June 1980, showed a forced vital capacity (FVC) of 39 percent of predicted with a forced expiratory volume after 1 second (FEV I) of 45 percent of predicted. Lung volume vital capacity was 45 percent of predicted and total lung capacity was 50 percent of predicted. The findings were of severe restrictive disease with decreased vital capacity from 1974; diagnosis was of calcified pleurae and restrictive disease. The veteran testified at a personal hearing in December 1980 that he had experienced increased chest pain and shortness of breath. He also had pains in his shoulder. The veteran also stated that he believed he had a heart attack in December 1979 as well as one in each of the two preceding years. He reportedly had been forced to retire from his job because of his service-connected disability. The veteran was afforded a VA special surgical-thoracic examination in August 1980. The examination report noted complaints of increasing pain and shortness of breath when walking and climbing stairs. Physical examination revealed limited excursion of the entire left hemothorax on deep breathing. Breath sounds on the left were distant and barely audible. No wheezes or rales were noted. There was dullness to percussion in the left chest. There was slight tenderness over the scars on the left lateral chest 10th rib area. There was full range of motion of shoulder and arm movements and good muscle strength bilaterally. No marked atrophy, pain on motion, or tenderness over the left shoulder or scapula were noted. The scars at the site of entrance and exit were smooth, flat and nontender. A chest X-ray report, dated in August 1980, showed a calcific fibrothorax on the left. A dense layer of calcium covered the viscera pleura from the apex to the diaphragm. The diaphragm was elevated, the intercostal spaces were slightly narrowed and the entire left thorax was reduced significantly. A pulmonary function study report, also dated in August 1980, showed a reduction in vital capacity which was 48.8 percent of predicted; and forced expiratory volume was 50 percent of predicted and in maximum voluntary ventilation which was 44 percent of predicted at six seconds and 42.8 percent of predicted at 12 seconds. It was noted that the veteran became very short of breath during the testing. The examiner also noted that although the decrease in function was small numerically, it was felt to be significant when one was functioning below 50 percent of predicted. A letter from the veteran's private physician, dated in February 1985, noted that the veteran had complained of increased shortness of breath for the past 3 to 4 years. The doctor suggested several possible causes. The doctor also opined that he did not believe the veteran's heart was contributing significantly to his limited exercise ability. A follow-up letter from the veteran's physician, dated in May 1985, indicated that the veteran's shortness of breath was not being caused by his medications. On VA examination in June 1985, it was noted that there was a full range of left shoulder movement. There was no gross atrophy and there was good strength. Pulmonary testing revealed a FVC of 50 percent of predicted and a FEV 1 of 50 percent of predicted. The impression from the pulmonary testing was of a stable restrictive lung disease secondary to a gunshot wound and fibrothorax. The veteran was afforded another VA pulmonary function test in July 1985. The test report indicated vital capacity of 33.7 percent predicted, forced expiratory volume of 33.8 percent predicted, maximum voluntary ventilation of 30.0 percent predicted at 6 seconds, and 26.1 percent predicted at 12 seconds. VA outpatient treatment records, dated in 1988, show treatment in the hypertension clinic only; there was no reference to the veteran's service-connected disability. VA outpatient treatment records, dated in 1991, show the veteran was seen primarily for hypertension, right shoulder pain and metabolic problems. The veteran testified at a personal hearing held in October 1992. He stated that he experienced left chest pain. It was a sharp pain that would seem to be right underneath the left nipple and run through the chest to the shoulder. These pains occurred approximately 3 or 4 times a week. He had been advised to walk more to increase lung capacity. He tried to walk every day but would often have to stop to get his breath and rest. He could only walk up one flight of stairs without rest. Recently a white spot had been seen on his left lung and a bronchoscopy was performed but they did not find anything. The veteran also testified that he had recently presented at the emergency room on two occasions because of chest pains. He saw a private heart physician. He was on medication for hypertension. However, he reported that his problems were mainly with his lungs. VA outpatient treatment records, dated from March 1992 to September 1992, noted he was seen in the pulmonary clinic in March 1992 complaining of "a few rough days"; the assessment was that he was doing fairly well and should return in six months. In September, the veteran complained of pain in the left shoulder which was resolved with Motrin. Slightly more dyspnea than baseline was shown. The chest was clear and the assessment was respiratory ventilatory defect, questionable change. Shoulder pain was reported to be chronic and controlled. An X-ray report, dated in September, noted a calcified fibrothorax on the left side which was unchanged. The veteran also underwent a bronchoscopy in September 1992 for evaluation of a lung nodule. The veteran was afforded a VA orthopedic examination in November 1992. The examination report noted complaints of weakness in the left shoulder and arm. The veteran also complained of pain which radiated from the chest up into the shoulder posteriorly and then down the brachium and occasionally into the hand. The pain was worse with lifting activity. Physical examination revealed a 1 cm scar at the entrance site and two round lesions at the exit site and at the chest tube entrance site. These scars were nontender, irregular, somewhat deltoid in variety, although fairly cosmetic. There was pain on pressure of the pectoralis muscle anteriorly and along the entire shoulder girdle. The motor strength in the left arm was 4/5 to all testing. Range of motion showed flexion to 125 degrees, hyperextension of 45 degrees, internal rotation of 30 degrees, and external rotation of 40 degrees. Abduction was 110 degrees. The diagnosis was "injury to muscles about the right (sic) shoulder with persistent weakness." Sensation was noted to be fully intact. The veteran was also afforded a VA special pulmonary examination in November 1992. The examination report noted the veteran complained of shortness of breath at four blocks and one flight of stairs. In addition, he complained of chest pain on deep inspiration. Physical examination revealed decreased breath sounds of the left chest. Pulmonary function test showed TLC of 64 percent expected, FEV I of 68 percent expected and FVC of 58 percent expected. The examiner indicated that the veteran's condition would be considered a stable moderate disability. The veteran is currently assigned a 40 percent disability rating for residuals of a gunshot wound to the chest. 38 C.F.R. § 4.97, Code 6818. The 40 percent rating contemplates moderately severe injury with pain in chest and dyspnea on moderate exertion (exercise tolerance test), adhesions of diaphragm, with excursions restricted, moderate myocardial deficiency, and one or more of the following: thickened pleura, restricted expansion of lower chest, compensating contralateral emphysema, deformity of chest, scoliosis, hemoptysis at intervals. Id. A 60 percent rating would be assignable if the evidence showed a severe injury with tachycardia, dyspnea or cyanosis on slight exertion, adhesions of diaphragm or pericardium with marked restriction of excursion, or poor response to exercise. When residuals are totally incapacitating a 100 percent schedular rating is warranted. 38 C.F.R. § 4.97, Code 6818. The veteran is also currently assigned a 20 percent disability rating for muscle injury to Muscle Group II, of the shoulder muscles. 38 C.F.R. § 4.73, Code 5302. It appears he is right handed. These muscles have as their function depression of the arm from vertical overhead to hanging at the side. The 20 percent rating contemplates moderate or moderately severe muscle injury to the minor extremity. A higher rating would be assignable if there was severe muscle damage. Code 5302. 38 C.F.R. § 4.56 defines a moderate injury as one which would result from a through and through or deep penetrating wound by a single bullet or small shell or shrapnel fragment. The history of such an injury would show hospitalization for treatment of the wound with consistent complaint of one or more of the cardinal symptoms of muscle wounds. Objective findings of such injury would include residual scars, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and definite weakness or fatigue in comparative tests. See also 38 C.F.R. § 4.72. A moderately severe disability is one which would be the consequence of a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity. Objective findings of such injury would include impairment of strength and endurance of the muscle group involved, moderate loss of deep fascia, or moderate loss of muscle substance. 38 C.F.R. §§ 4.56, 4.72. The Board finds that the current evidence, when viewed in conjunction with the in-service injury and taking into account the doctrine of reasonable doubt, does not demonstrate more than moderate muscle damage to Muscle Group II. 38 C.F.R. §§ 4.47- 4.56, 4.73, Code 5302. The objective findings from the veteran's recent VA examination, in November 1992, included residual scars, some weakness and loss of motion. However, the objective medical findings did not show severe impairment of strength and endurance of Muscle Group II, moderate loss of deep fascia, or moderate loss of muscle substance. 38 C.F.R. §§ 4.56, 4.72. Thus the Board concludes that an increased evaluation for the left shoulder disability is not warranted. We note that while ribs were fractured, there are some areas where this does not contemplate severe muscle damage. 38 C.F.R. § 4.72. This is especially true where other indicia of severe muscle damage are not shown. In addition, the Board finds that the veteran's lung disability does not demonstrate more than a moderately severe injury. The findings of recent VA X-rays, physical examinations and pulmonary function test clearly demonstrated a moderately severe injury. The veteran has testified that he is not currently to walk a quarter mile, or climb one flight of stairs, without stopping to rest. However, the objective medical findings do not show tachycardia, dyspnea or cyanosis on slight exertion, adhesions of diaphragm or pericardium with marked restriction of excursion, or poor response to exercise so as to warrant an increased rating of 60 percent for a severe injury to the pleural cavity. Furthermore, the respiratory impairment demonstrated has been noted to be stable by several examiners over the years. Thus, the veteran's claim for an increased evaluation for residuals of a gunshot wound to the left chest and shoulder must be denied. In reaching our decision consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We also do not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder. ORDER An increased disability evaluation, in excess of a combined 50 percent rating, for residuals of a gunshot wound of the left chest and shoulder is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.