Citation Nr: 0813745 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-06 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable rating for residuals, status post traumatic rupture of the right biceps tendon (right elbow disability). ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from June 1983 to February 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. The Board notes that the RO issued another rating decision later in July 2005 after the veteran's original service medical records were associated with the record. The RO determined that the addition of the original service medical records to the record did not change the previous noncompensable initial rating. The Board notes that statements made by the veteran reflect his assertion that service connection is warranted for a psychiatric disability secondary to his service-connected residuals, status post traumatic rupture of the right tendon, and that he is not able to find work. See Notice of Disagreement, received in October 2005; Substantive Appeal, received in February 2006. The Board construes this evidence as raising informal claims for service connection and a total disability rating based on individual unemployability (TDIU). As the RO has not yet adjudicated these issues, they are not properly before the Board. These matters are, therefore, referred to the RO for appropriate action. FINDING OF FACT The residuals of traumatic rupture of the right biceps tendon, are manifested by subjective complaints of pain and weakness, productive of no more than slight muscle disability. CONCLUSION OF LAW The criteria for an initial compensable evaluation for residuals, status post traumatic rupture of the right biceps tendon, involving Muscle Group V, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.73 Diagnostic Code 5305 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In this case, the veteran is appealing the initial rating assignment as to his right elbow disability. In this regard, because the July 2005 rating decision granted the veteran's claim of entitlement to service connection, such claim is now substantiated. His filing of a notice of disagreement as to the July 2005 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Dingess/Hartman, 19 Vet. App. at 493. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the muscle disability at issue (38 C.F.R. § 4.73, DC 5305), and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial noncompensable evaluation that the RO had assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records. The record also contains a report of a VA compensation and pension examination conducted in January 2005 (approximately one month prior to his discharge from service). In this regard, the Board notes that although the examination was performed in January 2005, medical history is for consideration in evaluating the veteran's disability picture for the rating period on appeal. Additionally, the claims file contains the veteran's statements in support of his claim. The Board has carefully reviewed his statements and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria and analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran asserts that an initial compensable rating is warranted for his service-connected disability. He reports that he suffers from pain and weakened or limited strength in his right arm. In the present case, the RO has evaluated the veteran's right elbow disability under 38 C.F.R. § 4.73, Diagnostic Code 5305. This Diagnostic Code concerns Muscle Group V, the flexor muscles of the elbow (biceps, brachialis, and brachioradialis), with functions including elbow supination and flexion of the elbow. Under this section, for a non- dominant extremity (as here, the record contains a report of medical history, dated in November 1982, where the veteran indicated that he is left-handed), a noncompensable evaluation is warranted for slight muscle disability. A 10 percent evaluation is warranted for moderate disability. A 20 percent evaluation is warranted for moderately-severe disability. Finally, a 30 percent evaluation is warranted for severe disability. Moderate disability of the muscles is shown by through and through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, and with residuals of debridement or prolonged infection. The history of a moderate muscle disability includes service department records of in-service treatment for the wound and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly a lowered threshold of fatigue after average use which affects the particular functions controlled by the injured muscles. Objective findings include small or linear entrance and (if present) exit scars which indicate 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(d)(2). Additionally, under these criteria, the cardinal signs and symptoms of muscle disability include loss of power, weakness, a lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. See 38 C.F.R. § 4.56(c). Historically, the RO granted service connection for residuals, status post traumatic rupture of the right tendon, in the July 2003 rating decision in view of evidence of an injury in service in October 2003. The veteran's service medical records confirm that he was initially seen for treatment on October 6, 2003 for complaints of a pulled muscle in his right arm (for 2 days). It was noted that the veteran reached out to grab a falling brick and suddenly felt mid-right arm pain. Physical examination revealed mild tenderness and no bruising. The assessment was (right) biceps tendon rupture. The veteran was referred to a private physician for evaluation. A private treatment record by R.D.C., Jr., D.O., dated October 20, 2003, reflects an impression of right distal biceps tendon rupture. Physical examination showed obvious deformity of the right biceps. However, it was noted that the veteran had excellent strength with elbow flexion on the right that was equal to the left. It was further noted that the veteran had some weakness with supination of the right forearm as compared to the left but nothing severe. Dr. R.C. indicated that the veteran demonstrated intact sensation with all dermatomes in his upper extremities, bilaterally. The veteran's reflexes were normal, bilaterally, and his distal pulses were intact, bilaterally. Further, his skin was normal without rashes, bilaterally. It was noted that the veteran was "too far out" to do acute repair of the distal biceps tendon rupture. A VA follow-up orthopedic record, dated in November 2003, indicates the veteran reported that his right hand became tired easily when holding something. The physician indicated that there was no tenderness to palpation when the right arm was in flexion position. Physical examination revealed biceps tendon bulges. The veteran, on pain assessment, reported his right arm pain to be 2 out of 10. The impression was right distal biceps tendon rupture. The record also contains two letters, each dated December 3, 2003, from J.D.G., M.D. It was indicated that the veteran reported he writes left-handed, but does everything else right-handed. It was further noted that the veteran had no other medical conditions that would be related to the development of this problem in his right upper extremity. The letter also revealed that the veteran had prominence of the biceps muscle in the anterior aspect of the right arm. The muscle had shortened from its distal attachment onto the radius. It was further noted that the veteran had good range of motion both in the elbow and in the forearm, but elbow flexion and forearm supination were distinctly weaker on the right than on the left. The impression was complete rupture of the distal attachment of the right biceps muscle. This private physician noted that because the injury occurred over six weeks ago, the muscle had shortened so much that it was not repairable because to do such now would cause a very significant flexion contracture of the elbow and this would be more functionally disabling than the present weakness he has. A second letter from Dr. J.G., also dated December 3, 2003, contained the same impression as noted in the first letter of the same date. In the second letter, Dr. J.G. opined that he does not feel the veteran is at any significant risk of further muscle rupture around his arm and elbow. It was noted that the veteran should continue with normal activities, but that clearly he will have some feeling of weakness in the right arm and specifically the muscles will tend to fatigue much more quickly than prior to his injury. About a month prior to the veteran's discharge from service, he was provided a VA compensation and pension examination in January 2005. The veteran's claims folder was available and reviewed by the examiner. The veteran reported experiencing a loss of strength in the right arm that he notices when doing yard work or home maintenance. He also reported pain in the right upper arm with lifting over 20 pounds. He denied the use of assistive devices. It was noted that the veteran denied any effects on his occupation and that he did not miss any work time due to the ruptured biceps tendon. The veteran denied flares, but stated that his symptoms were constant. Physical examination of the right upper arm revealed a bulge in the head of the biceps tendon with no tenderness to palpation. Right arm strength was grossly symmetric with his left arm strength. The impression was status post separation of the long head of the biceps tendon with no functional loss. The Board finds the January 2005 VA examination report to be probative as to the veteran's right elbow disability picture as the VA examiner reviewed the claims folder and performed a physical examination. The Board notes that no post-service competent medical evidence has been associated with the claims file or identified by veteran. The Board notes that separate service connection has been established for degenerative joint disease of the right shoulder, rated as 10 percent disabling, effective March 1, 2005. As such, manifestations of the service-connected right shoulder disability are not for consideration in rating the disability at issue. The Board finds that there is no basis for describing the right elbow disability as more than slight in degree. Except for the acknowledged subjective complaints of pain and weakness, the veteran's service-connected right elbow disability is no more than minimally symptomatic. In this regard, the Board notes that objective examination revealed a bulge in the head of the right biceps tendon, but there was no tenderness to palpation and his right arm strength was grossly symmetric with his left arm strength. Additionally, the competent clinical evidence reflects that there was no functional loss associated with the veteran's right elbow disability. See 38 C.F.R. § 4.40 (2007) (functional loss). In the absence of any other objective signs or symptoms of the Muscle Group V injury, the Board finds that the veteran's subjective complaints are encompassed within the noncompensable evaluation currently assigned. Further, the history of the veteran's right elbow disability does not more closely approximate a moderate muscle disability. Indeed, the October 20, 2003 in-service treatment record indicates that the veteran reported that he was feeling much better and had relatively little discomfort. Although the veteran had some mild weakness with supination his forearm, no other problems were noted, as he denied numbness, tingling, or change in sensation. As such, the Board finds that the competent clinical evidence of record reveals no more than a slight right elbow disability under Diagnostic Code 5305. The Board has considered alternative muscle Diagnostic Codes in an effort to afford the veteran a higher rating, but it finds that the objective evidence of record does not reveal the involvement of other muscle groups. The Board has also considered whether the veteran is entitled to separate ratings for any associated skin (scars) or neurological disabilities. The Board parenthetically notes that, according to 38 C.F.R. § 4.55(a), VA may not combine a muscle injury rating with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). The Board again finds that the objective evidence of record does not reflect that the veteran suffers from any associated skin or neurological disabilities to warrant a separate compensable rating. See, e.g., January 2005 VA examination report. In conclusion, the evidence of record, overall, does not support an initial compensable evaluation for the service- connected right elbow disability (Muscle Group V). Further, the Board considered the evidence throughout the appeal period, but finds that it does not show a distinct time period warranting a compensable staged rating. Fenderson, 12 Vet. App. at 126. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the right elbow disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The Board therefore has determined that referral of the case for extra- schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2007) is not warranted. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial compensable evaluation for residuals, status post traumatic rupture of the right biceps tendon, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs