Citation Nr: 0814466 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-16 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased disability rating for right radial nerve neuropathy, secondary to a fracture of the right humerus, currently evaluated as 20 percent disabling. 2. Entitlement to an initial compensable disability evaluation for a scar, residual of a fracture of the right humerus. 3. Entitlement to an initial compensable disability evaluation for a fracture of the right humerus. 4. Entitlement to service connection for a muscle injury of the right arm. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran served on active duty from January 1968 to July 1970. This appeal to the Board of Veterans' Appeals (Board) arose from February 2004 and June 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The February 2004 rating decision granted the veteran's claim of entitlement to service connection for a scar, residual of a fracture of the right humerus, and assigned a noncompensable disability rating, effective July 30, 2003. This rating decision also denied the veteran's claim for an increased disability rating for right radial nerve neuropathy and his claim of entitlement to service connection for a muscle injury of the right upper extremity. In the June 2005 rating decision, the RO granted service connection for a fracture of the right humerus, and assigned a noncompensable disability evaluation, effective July 30, 2003. These matters were previously before the Board in March 2007. At that time, the issues were remanded to accomplish additional development. The case has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The veteran has a fracture deformity of the diaphysis of the right humerus with residual medial angulation, without any limitation of motion of the arm, ankylosis of the scapulohumeral articulation, impairment of the clavicle or scapula, or other impairment of the humerus. 2. Throughout the rating period on appeal, the objective clinical evidence of record indicates that the scar, residual of a fracture of the right humerus, is superficial, but it is not unstable, productive of limitation of function of the right upper extremity, and does not exceed 12 square inches. 3. Throughout the rating period on appeal, the veteran's right radial nerve neuropathy, secondary to fracture of the right humerus, does not cause moderate incomplete paralysis of his radial nerve. 4. There is no competent medical nexus evidence of record indicating the veteran has a muscle injury of the right upper extremity, which is causally or etiologically related to his service in the military or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are met for a higher, compensable rating of 20 percent for a fracture of the right humerus. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5202 (2007). 2. The criteria for a compensable disability rating for a scar, residual of a fracture of the right humerus, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7801-7805 (2007). 3. The criteria for a disability rating in excess of 20 percent for right radial nerve neuropathy, secondary to fracture of the right humerus, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8514 (2007). 4. A muscle injury of the right upper extremity was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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). Notice 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 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 holds 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, the Department of Veterans Affairs (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 an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA issued VCAA notice letters dated in October 2003 and August 2005 from the agency of original jurisdiction (AOJ) to the appellant. These letters informed the appellant of what evidence was required to substantiate his claims for service connection and for an increased disability rating. These letters also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. As the February 2004 and June 2005 rating decisions on appeal granted the veteran's claims of entitlement to service connection for a fracture of the right humerus and scar, residual of a fracture of the right humerus, such claims are now substantiated. As such, his filing of a notice of disagreement as to the initial ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignments trigger 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. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The April 2005 and September 2005 statements of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes (DC) for the veteran's fracture of the right humerus and scar, residual of a fracture of the right humerus, and included a description of the rating formulas for all possible schedular ratings under the relevant diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular ratings, but also to obtain all schedular ratings above the disability evaluation that the RO had assigned. In addition, an October 2007 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. However, because the instant decision denies the veteran's claims, no disability rating or effective date will be assigned. Further, according to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information for the veteran's increased rating claim for right radial nerve neuropathy. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudicial error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. The Board notes that the veteran is represented by an attorney in this case. Further, an SOC issued in April 2005, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes (38 C.F.R. § 4.124(a), Diagnostic Code 8514) for rating the right radial nerve neuropathy at issue, 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 current evaluation assigned by the RO. Also, the claimant demonstrated that there was actual knowledge of what was needed to establish his claims. Actual knowledge is established by statements by the claimant and the claimant's representative that demonstrate an awareness of what was necessary to substantiate his claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) ; see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision in February 2004 was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the October 2003 VCAA notice. Regarding the unfavorable AOJ decision in June 2005, this decision was decided before the issuance of complete appropriate VCAA notice. As such, the timing of that VCAA notice is presumed to be prejudicial. The content of the October 2003 notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Moreover, the veteran's claim for an increased disability rating for a fracture of the right humerus was readjudicated after the issuance of the August 2005 notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records, reports of VA post- service treatment and examinations, and private medical records. Additionally, the claims file contains the veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further 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 claims. 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 claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Increased Disability Evaluation Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schrafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). In this case, the increased rating claim was received in October 1995. As such, the rating period for consideration on appeal is from October 1994. 38 C.F.R. § 3.400 (2007) In addition, where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal. Analysis Fracture of the Right Humerus The veteran's fracture of the right humerus is currently assigned a noncompensable disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5202. Under this Code, a 20 percent disability rating is assigned for malunion of the humerus with moderate deformity or for recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level. A 30 percent disability evaluation is assigned for malunion of the humerus with marked deformity or recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. The objective clinical evidence of record indicates that the veteran has a deformity of the right humerus. According to a May 2005 x-ray report, the veteran had an old fracture deformity of the diaphysis of the right humerus, with residual medial angulation at the fracture sight. However, the veteran's deformity cannot be characterized as marked and he does not have any additional functional impairment of the humerus. In this regard, the Board points out that the veteran does not experience recurrent dislocation of the scapulohumeral joint. As such, the Board is precluded from assigning an initial disability rating in excess of 20 percent for a fracture of the right humerus. The Board has also considered whether the veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes, including 5200, 5201, and 5203. But the evidence indicates the veteran currently does not have ankylosis in his right humerus, so Diagnostic Code 5200 is inapplicable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992), both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. Under Diagnostic Code 5201, a 30 percent rating is warranted where there is limitation of motion of the arm at midway between the side and shoulder level. However, there is no evidence of limitation of motion of the right arm. Moreover, the evidence does not show malunion or nonunion of the clavicle or scapula. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. In concluding that the veteran is entitled to a rating of 20 percent, but no higher, for his fracture of the right humerus, at any time during the rating period on appeal, the Board also has considered whether he is entitled to a higher rating on the basis of functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). See, too, 38 C.F.R. §§ 4.40, 4.45, and 4.59. He reports experiencing pain and weakness. Nevertheless, as already mentioned, his pain did not further inhibit his range of motion or otherwise create functional limitations. There also is no objective clinical indication that he has other symptoms, aside from this (e.g., premature or excess fatigability, weakness, incoordination, etc.), which otherwise result in any additional functional limitation in his right arm to a degree or extent that would support a rating higher than 20 percent. In determining the veteran is entitled to a rating higher than 20 percent, but no higher, the Board has also considered whether the disability at issue warrants an extra-schedular evaluation at any time during the rating period on appeal. The record on appeal, however, does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1). There has been no showing that his fracture of the right humerus has caused marked interference with his employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. Accordingly, the Board does not have to refer this case to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Scar, Residual Of A Fracture Of The Right Humerus The veteran's scar, residual of a fracture of the right humerus, is assigned a noncompensable disability evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. Disability evaluations are assigned under Diagnostic Code 7805 for limitation of function of the part affected by the scar, in this case, the right upper extremity. Limitation of motion of the arm is evaluated under Diagnostic Codes 5201. For the next higher 20 percent disability evaluation, there must be limitation of the arm to shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The objective evidence of record does not show that the veteran has limitation of motion of the right upper extremity for the rating period at issue. At his May 2005 VA examination he had normal range of motion of the right shoulder and right forearm. Specifically, he had full range of motion of the right shoulder in flexion, abduction, and rotation. He also had forearm pronation to 75 degrees and supination to 65 degrees. See 38 C.F.R. § 4.71, Plate I (full range of motion for shoulder is from zero (0) to 180 degrees and rotation from zero (0) to 90 degrees; full range of motion for forearm is pronation from zero (0) to 80 degrees and supination from zero (0) to 85 degrees). Moreover, there is also no reduction in muscle strength, nor is there any evidence of atrophy. As such, there is no evidence that this scar has impaired his ability to function. The Board also considered whether the veteran is entitled to a compensable disability rating under other applicable Diagnostic Codes, including Diagnostic Codes 7801-7804. Under Diagnostic Code 7801, a 10 percent disability evaluation is assigned for a scar that is deep or that causes limited motion of an area exceeding 6 square inches (39 sq. cm.). Diagnostic Code 7802 provides for a 10 percent disability evaluation for superficial scars, that do not cause limited motion, but that cover an area of 144 square inches (929 sq. cm.) or more. Diagnostic Code 7803, for a compensable 10 percent rating, requires an unstable superficial scar. Notes (1) and (2) in this code indicates that an unstable scar is one where, for any reason, there is frequent loss of the covering of the skin over the scar. Diagnostic Code 7804 provides for a 10 percent disability rating for superficial scars that are painful upon examination. The Board finds that a higher evaluation for the veteran's scar, residual of a fracture of the right humerus, is not warranted under Diagnostic Code 7801 through 7804, for the entire rating period. The medical evidence of record indicates that the veteran's scar is 15 cm. long by 1 cm. wide, nontender to the touch, and depressed in contour, but without keloid formation, hypopigmentation, or tissue loss. The veteran's December 2003 and May 2005 VA examination reports clearly indicate that this scar is nonadherent and does not limit his range of motion. As such, the evidence does not show that the range of motion criteria sufficient to support a compensable rating are met. Finally, the Board has considered whether the veteran is entitled to a higher rating on an extra-schedular basis. However, the record does not present such "an exceptional and unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, there has been no showing by the veteran that his scar, residual of a fracture of the right humerus, causes marked interference with his employment (that is, beyond that contemplated by his current schedular rating) or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. Rather, it appears from the record that he has not missed any time from work due to this disability, nor has he required any hospitalization or prolonged treatment for it, much less on a frequent basis. So there are no grounds for referring this case to the Director of VA's Compensation and Pension Service for extra-schedular consideration. See, e.g., Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Right Radial Nerve Neuropathy The veteran's right radial nerve neuropathy, secondary to fracture of the right humerus is rated according provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8514, for paralysis of the musculospiral nerve (radial nerve). A 20 percent evaluation is assigned for mild incomplete paralysis; a 30 percent rating requires moderate incomplete paralysis; and a 50 percent rating requires severe incomplete paralysis. A 70 percent disability rating requires complete paralysis with drop of the hands and fingers, perpetual flexion of the wrist and fingers, the thumb adducted falling within the line of the outer border of the index finger; inability to extend the hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of the wrist; supination of hand, extension an flexion of elbow weakened, the loss of synergic motion of extensors impairs hand grip; total paralysis of the triceps. See 38 C.F.R. § 4.124a, Diagnostic Code 8514. Upon reviewing these rating criteria in relation to the evidence for consideration, throughout the entire rating period on appeal, the Board finds that the veteran's disability picture is most consistent with his current 20 percent disability rating for his right radial nerve neuropathy. While the evidence shows that the veteran is right-handed, the evidence of record does not show that he experiences moderate incomplete paralysis of the radial nerve. Although he complained of numbness and weakness at his December 2003 VA examination, he had normal grip, push, pull, twisting, probing, writing, and touching motion of the right thumb and fingers. He also had a normal neurological examination, with only mildly decreased grip strength of 4 out of 5. Moreover, range of motion of the wrist and fingers was within normal limits. EMG testing in January 2004 showed residual involvement of sensory and motor fibers, but without active denervation changes. There was also no evidence of adverse effects on his activities of daily living. Therefore, his symptomatology most closely fits within the criteria for the currently assigned 20 percent disability evaluation. In determining the veteran is not entitled to a rating higher than 20 percent, the Board has also considered whether the disability at issue warrants an extra-schedular evaluation at any time during the rating period on appeal. The record on appeal, however, does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1). There has been no showing that his right radial nerve neuropathy has caused marked interference with his employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. Accordingly, the Board does not have to refer this case to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to Service Connection Legal Criteria A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Analysis Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a muscle injury of the right upper extremity, so it must be denied. 38 C.F.R. § 3.102. The service medical records do not show that the veteran complained of, or was treated for, a muscle injury of the right upper extremity during his military service. The Board acknowledges that the veteran incurred a fracture of the right humerus during his military service, for which he is now service-connected, and that the veteran had muscle atrophy at that time, due to disuse related to treatment for the fracture. However, the Board points out that the veteran did not make any complaints specifically related to an injury of the muscles of the right upper extremity at his discharge or upon his initial grant of service connection in 1970, including at his May 1971 VA examination. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incident in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). It stands to reason that, if he indeed had a muscle injury to his right upper extremity at his discharge from service, as he is now alleging, then he would have at least mentioned this during his treatment for the fractured right humerus. In addition, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). In the absence of demonstration of continuity of symptomatology, the initial demonstration of the disability at issue, decades after service, is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In fact, there is no medical evidence of record that the veteran currently has a muscle injury of the right upper extremity. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability."). None of the veteran's VA examination reports, nor his VA and private medical providers have found an injury of the right upper extremity, or residuals thereof, which is related to the veteran's military service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). In short, the only evidence portending that the veteran has a muscle injury of the right upper extremity that is related to his service in the military, or his service-connected fracture of the right humerus, comes from him personally. As a layman, the veteran simply does not have the necessary medical training and/or expertise to determine the cause of this condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current condition at issue to that symptomatology. Id. As such, his allegations, alone, have no probative value without medical evidence substantiating them. So the preponderance of the evidence is against his claim, in turn, meaning the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to a 20 percent initial disability rating for a fracture of the right humerus is granted, subject to the applicable law governing the award of monetary benefits. Entitlement to an initial, compensable rating for a scar, residual of a fracture of the right humerus, is denied. The claim for a disability rating higher than 20 percent for right radial nerve neuropathy is denied. Entitlement to service connection for muscle injury of the right upper extremity is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs