Citation Nr: 1124359	
Decision Date: 06/27/11    Archive Date: 07/06/11

DOCKET NO.  99-21 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 10 percent for residuals of a right elbow shrapnel wound with scar.  

2.  Entitlement to an increased disability evaluation in excess of 10 percent for residuals of a right hand shell fragment wound with fractures of the 1st and 2nd metacarpals.  


REPRESENTATION

Appellant represented by:	Jonathan Marshfield, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran had active service from January 1966 to January 1969.

Historically, a January 1970 rating decision granted service connection and assigned a 10 percent evaluation for residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals and a noncompensable evaluation for a right elbow scar.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decisions by the Newark, New Jersey, Regional Office (RO), which, in part, confirmed a 10 percent evaluation for residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals; and granted service connection and assigned a noncompensable evaluation for residuals of a right elbow shrapnel wound with retained foreign body, effective April 27, 1998.  

Parenthetically, although the Veteran expressed disagreement with that February 1999 rating decision's denial of service connection for arthritis of the right hand and elbow and a Statement of the Case was issue on that service connection issue, a Substantive Appeal was not timely received on said issue.  Consequently, said issue is not perfected and currently before the Board (See 38 U.S.C.A. § 7105 (West 2002) and 38 C.F.R. §§ 20.200, 20.202, and 20.302(b)) (2010).

A December 1999 RO hearing was held.  In a January 2000 decision, the hearing officer, in part, assigned a 10 percent evaluation for a tender scar of the right elbow, effective April 27, 1998, and included the scar as a residual of the service-connected right elbow shrapnel wound.   

In April 2002, the Board undertook additional development on said appellate issues, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2) (2002)).  However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Disabled American Veterans v. Secretary of Veterans Affairs invalidated a portion of the Board's development regulations, specifically 38 C.F.R. § 19.9(a)(2), and (a)(2)(ii).  See Disabled American Veterans, et. al., v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  Consequently, in light of that Federal Circuit case, in November 2003, the Board remanded the case to the RO for additional development, including readjudication that considered any additional evidence obtained pursuant to the Board development regulations in effect prior to said judicial invalidation.

In a July 2005 decision, the Board denied entitlement to an initial evaluation in excess of 10 percent for residuals of a right elbow shrapnel wound with scar and entitlement to an increased rating for residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals, currently assigned a 10 percent evaluation.  The Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court).  

While the case was pending at the Court, the VA Office of General Counsel and the Veteran's attorney filed a Joint Motion for Remand, requesting that the Court vacate and remand the July 2005 decision.  In February 2007, the Court in turn issued an Order that granted the Joint Motion.  

In November 2007, this matter was remanded for development in accordance with the Joint Motion.  The case is now ready for the Board's appellate determination.

The Board notes that in a March 2007 rating decision, service connection for bilateral sensorineural hearing loss was granted and a zero percent rating was assigned from October 27, 2004.  The Veteran was notified of this decision in April 2007.  A March 2008 rating decision assigned a 70 percent rating for post traumatic stress disorder (PTSD) and granted service connection for headaches and assigned a 10 percent rating from April 3, 2006.  The March 2008 rating decision also granted entitlement to a total rating based upon individual unemployability from July 2, 2007.  

The Veteran filed a notice of disagreement for the issues of entitlement to higher ratings for bilateral hearing loss, PTSD, and headaches in August 2008.  A statement of the case was issued in January 2011.  

The Board finds that appeals for the issues of entitlement to higher ratings for bilateral hearing loss, PTSD, and headaches were not perfected.  For the issue of a higher rating for hearing loss, the Board finds that the Veteran did not file a timely notice of disagreement.  See 38 C.F.R. § 20.302.  Regarding all issues listed in the statement of the case, the Veteran did not file a substantive appeal.  Thus, these issues are not perfected and are not before the Board for appellate consideration.  See 38 C.F.R. § 20.200.  


FINDINGS OF FACT

1.  The service-connected residuals of the shrapnel wound to the right elbow is primarily manifested by a retained metallic fragment between the proximal right radius and ulna, approximately 2 and 1/2 centimeters distal to the radial head; a well-healed, smooth, nonpainful, nonadherent, depressed scar which was 1 inch in length on the lateral aspect of the elbow; some underlying soft tissue damage; limitation of flexion of the right elbow to 5 to 10 degrees; supination of the right elbow to 25 to 30 degrees; complaints of pain; and increased pain with repetitive movement which approximates moderate muscle impairment.  

2.  The service-connected residuals of a right hand shrapnel wound are manifested primarily by complaints of pain and increased pain and fatigue on repetitive use; well-healed, nonadherent residual scars over the dorsum of the hand; a retained shrapnel fragment located just under the skin on the dorsum of that hand; healed, fractures at the base of the right thumb and index finger; some limitation of flexion of the right thumb and index finger; full range of motion of the right middle finger; thumb opposition to all fingers and the ability to touch the fingers to the palm of the right hand without evidence of ankylosis of the right index finger, thumb or middle finger and the residuals of the shrapnel wound of the right hand does not result in limitation of motion of the other digits or interfere with the overall function of the hand.  

3.  The service-connected residuals of a right hand shrapnel wound more closely approximates moderate muscle impairment.  


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 10 percent for the service-connected residuals of a right elbow shrapnel wound with scar have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5206 to 5213, 5305, 5306, 7801 to 7805 (1999-2010).

2.  The criteria for an increased rating in excess of 10 percent for the service-connected residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5218, 5219, 5222 to 5226, 5307 to 5309 (1999-2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Duty to Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

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 and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The Board concludes that the Veteran has been afforded appropriate notice under VCAA.  The RO provided VCAA notice letters to the Veteran in August 2001, March 2004, December 2007, and June 2009.   

The letters notified the Veteran of what information and evidence must be submitted to substantiate the claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  

The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The December 2007 and June 2009 letters provided this notice.  

The claims were readjudicated in April 2011, thus curing any lack of timeliness of notice.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied.  All available service treatment records were obtained.  

The Veteran identified treatment of the right elbow disability by Dr. Torg at the University of Pennsylvania Hospital.  He reported that he had surgery on the right elbow in 1988.  The RO requested copies of private treatment records from Dr. Torg in July 1998.  In July 1998, Dr. Torg informed the RO that he had no chart for the Veteran.  

At the hearing before the RO in December 1999, the Veteran stated that Dr. Torg performed surgery on him at Jefferson Hospital in Philadelphia. 

In a January 2000 supplemental statement of the case, the RO informed the Veteran that they sought the treatment records from Dr. Torg and were informed that Dr. Torg did not have a chart for the Veteran.   

The RO requested copies of these treatment records from the University of Pennsylvania Hospital in September 2002.  In September 2002, the University of Pennsylvania Hospital informed the RO that they did not have any records for the Veteran.  In an October 2008 statement from the Veteran which was received at the RO in August 2008, the Veteran stated that he was unable to obtain his surgery records from Jefferson Hospital and due to the length of time since the surgery, the hospital no longer has the records.  The Board finds that any additional attempts to locate the records from Dr. Torg and Jefferson Hospital would be futile since the records in question are no longer available.    

Records from Dr. C., the U.S. Post Office, and the Social Security Administration have been obtained and associated with the claims file.  

The Veteran has not identified any additional treatment records for treatment of the shrapnel wounds to the right elbow and right hand.  In August 2008 and April 2011, the Veteran informed the RO that he had no additional information or evidence to submit.  The Board finds that there is no identified relevant evidence that needs to be obtained in this regard.  

The Veteran underwent VA joint examinations in August 1998, August 2001, March 2004, and November 2009; a VA scar examination in August 2001; and a VA examination of the right hand in January 2011 in order to fully evaluate the severity of the service-connected shrapnel wound to the right elbow and hand.  The VA examinations are sufficiently detailed and comprehensive regarding the nature and severity of the service-connected disabilities at issue and provide a clear picture of relevant symptoms and findings.  There is no indication that other, relevant medical records exist that would indicate a greater degree of severity of the service-connected disabilities at issue than that shown in said VA examinations and other evidence of record.  

The Veteran has also had the opportunity to testify at an RO hearing as to the nature and severity of the disabilities at issue.  

Under the circumstances, the Board finds no reasonable possibility that further assistance would aid the Veteran in substantiating the claims.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).


Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010).  

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in  civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010).  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2010).  

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.  See also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Rating Skin Disorders and Scars

While this appeal was pending, the applicable rating criteria for the skin were amended effective on August 30, 2002.  See 67 Fed. Reg. 49590-49599 (July 31, 2002).    

The applicable rating criteria for the skin were amended again effective on October 23, 2008, specifically 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  

Before August 30, 2002, the rating schedule read as follows:

Superficial scars that are poorly nourished with repeated ulceration warrant a 10 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2002).  

Scars which are superficial and tender and painful on objective demonstration warrant a 10 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2002).

Scars that limit the function of any part affected are rated based upon limitation of function of the part affected.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2002).

Beginning on August 30, 2002, the rating schedule reads as follows:

Scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm.) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling.  38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect from August 30, 2002).  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2.  

Scars, other than head, face, or neck, that are superficial and that do not cause limited motion covering an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling.  38 C.F.R. § 4.118, Diagnostic Code 7802.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2.  

Diagnostic Code 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable.  38 C.F.R. § 4.118, Diagnostic Code 7803.  

Note 1 to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note 2 to Diagnostic Code 7803 provides that a superficial scar is one not associated with underlying soft tissue damage. 

Scars which are superficial and painful on examination are rated as 10 percent disabling.  38 C.F.R. § 4.118, Diagnostic Code 7804.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1.  

Other scars are rated based upon limitation of function of affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805.

Rating Muscle Disabilities

Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73.  For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b) (2010).  The specific bodily functions of each group are listed at 38 C.F.R. § 4.73 (2010).  

Generally, a muscle injury rating will not be combined with a peripheral nerve paralysis rating for the same body part, unless the injuries affect entirely different functions.  38 C.F.R. § 4.55(a) (2010); see also 38 C.F.R. § 4.14 (2010).  

There will be no rating assigned for muscle groups which act upon an ankylosed joint, with exceptions to this rule relating only to the knee and the shoulder.  See 38 C.F.R. § 4.55(c) (2010).  

Additionally, the combined evaluation of muscle groups acting on a single unankylosed joint must be lower than the rating for unfavorable ankylosis of that joint, except when muscles groups I and II are acting on the shoulder.  38 C.F.R. § 4.55(d) (2010).  

When compensable muscle group injuries are in the same anatomical region, but do not act on the same joint, the rating for the most severely injured muscle group will be increased by one level, and used as the combined evaluation for all affected muscle groups. 38 C.F.R. § 4.55(e) (2010).  

Otherwise, for muscle group injuries in different anatomical regions (not acting on ankylosed joints), each injury is separately rated, and ratings are then combined under VA's "combined ratings table" at 38 C.F.R. § 4.25, for the purposes of determining schedular compensation ratings.  

The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56.  First, an open comminuted fracture with muscle or tendon damage will be rated as severe, unless (for locations such as the wrist or over the tibia) the evidence establishes that the muscle damage is minimal.  38 C.F.R. § 4.56(a) (2010).  

A through and through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.  38 C.F.R. § 4.56(b) (2010).  For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.  38 C.F.R. § 4.56(c) (2010).  

Under Diagnostic Codes 5301 to 5323, muscle injuries disabilities are rated as slight, moderate, moderately severe or severe according to criteria based on the type of injury, the history and complaint, and objective findings.  38 C.F.R. § 4.56(d) (2010).  

Diagnostic Code 5305 rates impairment to Muscle Group V.  Muscle Group V concerns the following functions: elbow supination, which involves the long head of the biceps as a stabilizer of the shoulder joint; and flexion of elbow, which involves the biceps, brachialis, and brachioradialis muscles.  A 10 percent rating is assigned for a moderate disability of the dominant or non-dominant hand; a moderately severe disability warrants a 30 percent rating for the dominant hand; and a 40 percent rating is warranted for severe disability of the dominant hand.  See 38 C.F.R. § 4.73, Diagnostic Code 5305.  

Diagnostic Code 5306 rates impairment to Muscle Group VI.  The function of Muscle Group VI involves extension of the elbow (long head of triceps is stabilizer of the shoulder joint).  This provision further provides: extensor muscles of the elbow (1) triceps; (2) anconeous.  Under Diagnostic Code 5306, a 10 percent rating is warranted for moderate disability, a 30 percent rating is warranted for moderately severe disability, and a 40 percent rating is warranted for severe disability (of the dominant upper extremity).  See 38 C.F.R. § 4.73, Diagnostic Code 5306.  

Diagnostic Code 5307 rates impairment to Muscle Group VII.  Muscle Group VII involves the muscles arising from the internal condyle of the humerus, to include the flexors of the carpus and long flexors of fingers and thumb and the pronator, and its functions include the flexion of wrist and fingers.  38 C.F.R. § 4.73, Diagnostic Code 5307.  A 10 percent rating is assigned for moderate muscle impairment to the dominant hand; a 30 percent rating is assigned for moderately severe impairment to the dominant hand, and a 40 percent rating is assigned for severe impairment to the dominant hand.  Id. 

Diagnostic Code 5308 rates impairment to Muscle Group VIII.  Muscle Group VIII's functions include extension of wrist, fingers, and thumb; abduction of the thumb.  It includes the muscles arising mainly from the external condyle of the humerus: extensors of carpus, fingers, and thumb; supinator.  Under Diagnostic Code 5308, a moderate injury warrants a 10 percent rating; a moderately severe injury or severe injury both warrant a 20 percent rating for the dominant extremity.  38 C.F.R. § 4.73, Diagnostic Code 5308.

Diagnostic Code 5309 rates Muscle Group IX.  Muscle Group IX involves the intrinsic muscles of the hand, including the thenar eminence, the short flexor, opponens, abductor, and adductor of the thumb, hypothenar eminence, the short flexor, opponens, and abductor of the little finger, 4 lumbricales, and 4 dorsal and 3 palmar interossei.  Muscle Group IX functions to supplement the strong grasping movements of the forearm muscles with delicate manipulative movements.  38 C.F.R. § 4.73, Diagnostic Code 5309.  As the hand is so compact a structure, isolated muscle injuries are rare, and these injuries are rated based on limitation of motion, with a minimum rating of 10 percent.  38 C.F.R. § 4.73, Diagnostic Code 5309, Note.

38 C.F.R. § 4.56 provides that slight muscle disability is found where there has been a simple wound of the muscle without debridement or infection.  Clinical examination would disclose the absence of fascial defect, atrophy, or impaired tonus.  No impairment of function or metallic fragments retained in muscle tissue would be present.  38 C.F.R. § 4.56.  

The type of injury associated with a moderate muscle disability is a 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.  

A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles.  

Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and 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.  38 C.F.R. § 4.56(d)(2).  

The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  

A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. 

Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side.  Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).  

The type of injury associated with a severe muscle disability is a through and through or deep penetrating wound by a small 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, and intermuscular binding and scarring.  

A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.  

Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area.  Also, muscles swell and harden abnormally in contraction.  Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should 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 missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, 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; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).  

Rating Limitation of Motion of the Elbow and Arm

Limitation of flexion of the forearm is rated under Diagnostic Code 5206.  A noncompensable rating is assigned for flexion of the major forearm limited to 110 degrees.  A 10 percent rating is assigned for flexion of the major forearm limited to 100 degrees.  A 20 percent rating is assigned for flexion of the major forearm limited to 90 degrees.  A 30 percent rating is assigned for flexion of the major forearm limited to 70 degrees.  A 40 percent rating is assigned for flexion of the major forearm limited to 55 degrees.  A 50 percent rating is assigned for flexion of the major forearm limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5206 (2010).

Limitation of extension of the forearm is rated under Diagnostic Code 5207.  A 10 percent rating is assigned for extension of the major forearm limited to 60 degrees or less.  A 20 percent rating is assigned for extension of the major forearm limited to 75 degrees.  A 30 percent rating is assigned for extension of the major forearm limited to 90 degrees.  A 40 percent rating is assigned for extension of the major forearm limited to 100 degrees.  A 50 percent rating is assigned for extension of the major forearm limited to 110 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5207 (2010).

Additionally, Diagnostic Code 5208 provides a 20 percent rating for flexion of the major forearm limited to 100 degrees with extension limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5208 (2010).

Limitation of supination of either forearm to 30 degrees or less warrants a 10 percent evaluation.  Limitation of pronation of the forearm of the major upper extremity warrants a 20 percent evaluation if motion is lost beyond the last quarter of the arc and the hand does not approach full pronation.  A 30 percent evaluation requires that motion be lost beyond the middle of the arc.  Limitation of pronation of the forearm of the minor upper extremity warrants a 20 percent evaluation if motion is lost beyond the last quarter of the arc and the hand does not approach full pronation or if motion is lost beyond the middle of the arc.  38 C.F.R. § 4.71a, Diagnostic Code 5213 (2010). 

Normal ranges of elbow motion are zero degrees extension and 145 degrees flexion; and forearm pronation and supination are 80 and 85 degrees, respectively.  38 C.F.R. § 4.71 (2010), Plate I.

Rating Limitation of Motion of the Fingers

VA amended its regulations pertaining to rating ankylosis and limitation of the fingers, including the thumb, effective August 26, 2002.  See 67 Fed. Reg. 48784-48787 (July 26, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230).  

The applicable rating criteria for the skin were amended again effective on October 23, 2008, specifically 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  This amendment only applies to applications for benefits received by VA on or after October 23, 2008.  Thus, this amendment does not apply to the current case. 

Given the change in law, while VA may consider the former criteria for rating the fingers for the entire period during which the appeal has been pending, it may only consider the revised criteria from August 26, 2002.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Under the former regulations, Diagnostic Code 5225 provided that favorable or unfavorable ankylosis of the index finger of the major hand may be assigned a 10 percent evaluation.  Diagnostic Code 5224 provided that favorable ankylosis of the thumb of the major hand may be assigned a 10 percent evaluation or 20 percent for unfavorable ankylosis.  38 C.F.R. Part 4, Diagnostic Codes 5224 and 5225 (effective prior to August 26, 2002).  

Ankylosis is considered to be favorable when the ankylosis does not prevent flexion of the tip of the finger to within 2 inches (5.1 cm.) of the median transverse fold of the palm.  It is unfavorable when it precludes such motion.  Extremely unfavorable ankylosis will be rated as amputation under the provisions of Diagnostic Code 5152 or 5153.  Ankylosis is considered to be extremely unfavorable when all of the joints of the finger are in extension or in extreme flexion, or when there is rotation and angulation of the bones.  

Under the revised regulations, the ratings for Diagnostic Codes 5220-5223 apply to favorable ankylosis or limited motion permitting flexion of the tips to within 2 inches (5.1 cms.) of the transverse fold of the palm.  See Note 3 under the preamble preceding Diagnostic Codes 5216-5219 and 5220-5223.  38 C.F.R. Part 4, Diagnostic Codes 5220-5223 (effective August 26, 2002).  Note (4) under the preamble preceding Diagnostic Codes 5216-5219 and 5220-5223 also applies to evaluation of ankylosis of the thumb.  

Under Diagnostic Code 5229, for limitation of motion of the index finger, a zero percent rating is provided where there is a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees (for the major or minor hand).  A 10 percent rating is warranted for the major or minor hand where there is a gap of more than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.  38 C.F.R. Part 4, Diagnostic Code 5229 (effective August 26, 2002).  

Amended Diagnostic Code 5224, for ankylosis of the thumb, and Diagnostic Code 5225, for ankylosis of the index finger, are the same as the old versions, except a Note underneath the amended codes states that a medical determination must consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 

Under Diagnostic Code 5228, for limitation of motion of the thumb, a 10 percent rating may be assigned for the major or minor arm with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  A 20 percent rating requires a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  38 C.F.R. Part 4, Diagnostic Codes 5228 (effective August 26, 2002).  

Amended Diagnostic Codes 5152 and 5153, for amputation of the thumb or index finger, are the same as the old version.

In this regard, under old and new Diagnostic Code 5224, thumb, ankylosis of, provides a rating of 10 percent for favorable ankylosis and 20 percent for unfavorable ankylosis. 38 C.F.R. § 4.71a, (2002); 38 C.F.R. § 4.71a (2010).  

Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Effective August 26, 2002, the notes to Diagnostic Codes 5224 through 5227 in 38 C.F.R. § 4.71a were amended to require consideration of "whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand."  See 67 Fed. Reg. 48785.

Also effective August 26, 2002, Diagnostic Code 5228, thumb, limitation of motion was added to the rating schedule and it provides a non-compensable rating (zero percent) for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating for a gap of between one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and a 20 percent rating for a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  38 C.F.R. § 4.71a (2010).

Limitation of multiple fingers is to be separately rated and combined.  38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note 5.

The maximum rating for limitation of motion of the index or long finger is 10 percent.  That rating is provided when there is a gap of one inch or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, or with extension limited by more than 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5229.  For the index, long, ring and little fingers (digits II, III, IV and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand.  38 C.F.R. § 4.71a, Note 1.

Standard of Review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  

Analysis

I.  An Initial Evaluation in Excess of 10 Percent for a Right Elbow Shell Fragment Wound.

Factual Background

According to a May 1968 service medical record, the Veteran sustained multiple shrapnel wounds in February 1968, including the right forearm and hand, from enemy small arms fire and grenade.  The Veteran was hospitalized until May 1968.  In August 1968, it was noted that an "s/w" grazed the right arm; and a right elbow "burn" and abrasion were treated, including with a phisohex wash and dressing.  On January 1969 service separation examination, the upper extremities were clinically unremarkable, except the right elbow had a 2-inch scar.  A history of multiple shrapnel wounds, including the right forearm, was noted.  

On November 1969 VA orthopedic examination, the Veteran reported being a police officer.  Clinically, there was a 1-1/4-inch by 3/8-inch, superficial, smooth, healed, and asymptomatic scar over the right elbow.  It was also noted that he was right-handed.  

On June 1983 VA surgical examination, the Veteran's right elbow had a 3-cm long, healed scar over the forearm posteriorly, just below the olecranon.  The scar was pliable and nonadherent; and the elbow had normal range of motion.  X-rays of the right elbow were unremarkable, except for a small, metallic fragment in the proximal portion of the forearm.  Subsequent VA examinations reports dated in the 1980's indicated that the Veteran was a police officer from 1969 to 1981; a mailman from 1983 to 1988; and a real estate investigator for a state agency since 1988.  

United States Postal Service records include private clinical records dated in the 1980's, which reflect that in late 1985, the Veteran sustained a right elbow injury lifting heavy mail sacks at work and right lateral epicondylitis was diagnosed.  According to a January 1986 private medical statement, although the Veteran had right elbow pain and a history of a shell fragment wound with foreign body in that area, the pain was in the lateral elbow area.  X-ray showed a metallic foreign body in the proximal forearm "but not in the area of pain."  It was therefore opined that the diagnosed probable, acute, lateral epicondylitis/ "tennis elbow" may have been caused and aggravated by his job.  In a written statement, the Veteran divulged that his right elbow became painful in December 1985; and that physicians had advised him that the shrapnel in his arm was too far from the elbow to be causing any pain and the tendonitis was caused by heavy lifting at work.  

Private clinical records dated in March 1995 indicated that after an MRI of the neck was performed, the Veteran reportedly began having right elbow pain for the past year and now wanted an opinion as to the feasibility of having a shrapnel fragment removed from that elbow.  On examination, the right elbow was unremarkable, except there was a shell fragment wound scar at the lateral aspect of the elbow and also a surgical scar over the lateral epicondyle from a lateral extensor muscle release performed in 1988.  A CT scan of the right elbow showed a 5-mm metallic fragment between the proximal right radius and ulna, approximately 2-1/2-cm distal to the radial head.  It was determined that surgical removal of that fragment would be difficult.

On August 1998 VA orthopedic examination, the Veteran's complaints included pain in the area of a right elbow tendon injury with surgical repair.  Clinically, there was a circumferential 1-1/2-inch long scar over the right lateral epicondyle that was slightly tender, well-healed, non-swollen, and nonadherent.  Approximately 1/2-inch below this scar was a non-keloidal, non-swollen, nonadherent, vertical, 1-inch long scar paralleling the ulna.  The right elbow had full range of motion without swelling or muscle loss.  

In a November 1999 written statement, the Veteran reported that in November 1995, he was involved in a motor vehicular accident and as a result of receiving an MRI, began experiencing severe pain and numbness in the hand and arm.

During a December 1999 RO hearing, the Veteran testified as to the nature and severity of his disabilities at issue.  Additionally, at T.2-3, he reported that in 1988, after having chronic right elbow tendonitis, tendon surgery was performed; that in the 1990's, he sustained a motor vehicular injury and experienced headaches which he thought were due to a "pinched" nerve in the neck; and after having an MRI in 1995, the metal in him became hot and subsequently, he had upper extremity numbness.  

On August 2001 VA orthopedic examination, the Veteran reported having difficulty lifting over 25 pounds repetitively with the right elbow and that his work position required typing and this repetitive action caused right hand pain.  X-rays of the right elbow showed a small focus of shrapnel.  

On August 2001 VA dermatologic examination, there were 4 by .1-cm and 3 by .1-cm, linear, hypopigmented scars on the right posterior elbow.  The scars were not painful on palpation and did not interfere with range of motion.  

A private orthopedic evaluation report by Dr. C. dated in May 2003 indicates that the Veteran's complaints included right upper extremity pain and weakness, with occasional intermittent numbness.  Clinically, the right elbow had full, normal ranges of motion.  There was lateral epicondyle tenderness and grip strength was decreased compared to the left hand.  X-rays of the right elbow were interpreted as showing a "bone" fragment between the proximal radius and ulna.  

On March 2004 VA orthopedic examination, the Veteran's complaints included a painful right elbow, particularly on repetitive motion and lifting.  At rest, he had no symptoms.  He was employed as a real estate investigator with a state agency.  Clinically, the right elbow had well-healed scars which were nonpainful on palpation.  The right elbow was nontender on palpation.  There was no effusion, swelling, or erythema in the right elbow.  The right elbow had full ranges of motion.  The right upper extremity had "5/5" strength.  Resisted wrist extension produced no pain at the lateral epicondyle.  The examiner opined that review of the claims file showed that the Veteran's right lateral epicondylitis was "work-related and not service-connected."

The Veteran was afforded a VA examination in November 2009. 

Discussion

With respect to the right elbow shrapnel wound, it is reiterated that historically, a January 1970 rating decision granted service connection for a right elbow scar and assigned a noncompensable evaluation.  A February 1999 rating decision granted service connection and assigned a noncompensable evaluation for residuals of a right elbow shrapnel wound with retained foreign body, effective April 27, 1998.  

In a January 2000 decision, the hearing officer, in part, assigned a 10 percent evaluation for a tender scar of the right elbow, effective April 27, 1998, and included the scar as a residual of the service-connected right elbow shrapnel wound.   

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  In this case, the Board will consider whether another rating code is "more appropriate" than the code used by the RO.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). 

The service-connected residuals of a shrapnel wound to the right elbow are currently rated as 10 percent disabling under the former Diagnostic Code 7805, which rates a scar on limitation of function of the part affected, which in this case, is the right elbow.   

The Board notes that the service-connected residuals of the shrapnel wound to the right elbow has been rated by the RO under two different diagnostic codes, Diagnostic Code 5207, limitation of flexion of the forearm, and Diagnostic Code 7805.  

In this case, the Board finds that the right elbow disability is more appropriately rated under Diagnostic Code 5305, impairment to Muscle Group V.  The evidence of record shows that the residuals of the shrapnel wound of the right elbow is manifested by retained foreign bodies, and affects supination and flexion of the right elbow.  As will be discussed in greater detail below, the scars due to the shrapnel wound to the right elbow are asymptomatic.  The Board finds that Diagnostic Code 5305 is the more appropriate code because the primary manifestations of the residuals of the shrapnel wound of the right elbow are contemplated under the criteria for Diagnostic Code 5305.  Accordingly, the Board finds that use of Diagnostic Code 5305 is more appropriate, and the right elbow disability will be rated under that code. 

The Board has considered whether a higher rating is warranted for the residuals of a shrapnel wound to the right elbow under Diagnostic Code 5305 and Diagnostic Code 5306 (injuries to Muscle Group VI)..  

The rating criteria distinguish between the dominant (major) and non-dominant (minor) extremities.  In this case, the Veteran is shown to be right-handed, so the criteria for the dominant extremity apply.

Under the rating criteria for Diagnostic Codes 5305 and 5306 (Muscle Groups V and VI respectively), for the dominant hand, a noncompensable rating is assigned for slight disability; a rating of 20 percent is assigned for moderate disability; a rating of 30 percent is assigned for moderately severe disability; and a rating of 40 percent is assigned for severe disability.

In determining the level of impairment here, the Board has reviewed not only recent medical evidence, but also the Veteran's service treatment records to better understand the nature of his original muscle injury.  

The medical evidence establishes that the service-connected right elbow disability more closely approximates moderate muscle impairment.  Regarding the type of injury, the service treatment record describe the wound as a shrapnel wound to the right forearm.  There was no evidence of explosive effect.  There was no evidence of a through and through wound or a deep penetrating wound by a small velocity missile or large low velocity missiles.  The service treatment records indicate that the wound was debrided and all wounds healed.  There is no evidence of sloughing of soft parts or intermuscular scarring.  There is no evidence of any residuals of debridement or prolonged infection of the wound in service.  Physical examination in May 1968 was negative except for the presence of scars in the area of the wounds.  There were no abnormal x-ray findings of the right forearm.  In may 1968, the Veteran was discharged from the hospital to full duty.    

Regarding history and complaints, the service treatment records show that the Veteran had a prolonged hospitalization from February 1968 to May 1968 for treatment of the shrapnel wound to the right elbow.  

There is no evidence of any cardinals signs or symptoms until 1985.  The May 1985 VA examination report indicates that the Veteran had complaints of constant pain in the right elbow.  As discussed above, the Veteran sustained a post-service injury to the right elbow at work in 1985 and the pain in the right elbow was not attributed to the shrapnel wound or the retained foreign body.  

The June 1989 VA examination report notes that the Veteran had periodic pain in the right elbow.  Subsequent VA examination reports dated in August 1998, August 2001, March 2004, and November 2009 show that the Veteran had complaints of pain in the right elbow to include with repetitive motion or movement.  

Regarding objective findings, the medical evidence shows that there are retained metallic fragments in the soft tissue of the right elbow.  There is evidence of an entrance scar but no evidence of an exit scar, evidence of loss of deep fascia, muscle substance, or normal firm resistance of the muscles compared with the sound side.  There is evidence of decreased grip strength on the right hand in 2003 as compared to the left hand.  However, medical evidence dated prior to and from 2003 show that the muscle strength of the right arm was 5/5 as compared to the left arm.  

The November 2009 VA examination report indicates that the scar due to the shrapnel wound was 1 inch in length.  It was slightly depressed, well-healed, and nontender. There was no sign of inflammation, edema, or keloid formation.  There was some underlying soft tissue damage as evidenced by the slight depression of the scar.  The examiner stated that the scar was more than superficial and was considered to be deep as evidenced by the slight depression of the scar.  The scar was not adherent to the underlying tissue.  

The Board finds that the residual disability of the shrapnel wound to the right elbow more closely approximates the criteria for moderate muscle disability, not moderately-severe or severe muscle injury.    

The undisputed evidence of retained metallic fragments, cardinal signs and symptoms of pain and lowered threshold of fatigue after repetitive use supports the characterization of "moderate" under 38 C.F.R. § 4.56.  The evidence does not establish moderately severe or severe impairment.  There is no evidence of sloughing off of soft parts, of intermuscular scarring, or penetration of multiple muscle groups.  The VA examination reports show normal strength in the right upper extremity.  Moreover, as the service treatment records demonstrate, the Veteran's muscle disorder did not result from a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile.  38 C.F.R. § 4.56.  There is no evidence of any damage to the bones in the right arm, adherent scars, atrophy, diminished muscle excitability, or abnormal swelling or hardening.   

Based on the evidence of record, the Board finds that a rating in excess of the 10 percent evaluation is not warranted under Diagnostic Codes 5305 and 5306 because the right elbow disability more closely approximates moderate muscle impairment, not moderately severe or severe.  

The Board has considered whether a higher rating is warranted for the residuals of a shrapnel wound to the right elbow under the former and revised rating criteria for rating scars.  

The Board has considered whether a higher rating is warranted for the residuals of a shrapnel wound to the right elbow under the former Diagnostic Code 7805, which rates a scar on limitation of function of the part affected, which in this case, is the right elbow.   

The Board finds that a higher initial rating in excess of 10 percent is not warranted for the residuals of a shrapnel wound of the right elbow under the former and revised rating criteria pertinent to rating scars.  

The residuals of the shrapnel wound to the right elbow is primarily manifested by a retained metallic fragment between the proximal right radius and ulna, approximately 2 and 1/2 centimeters distal to the radial head; a scar on the lateral aspect of the elbow; limitation of motion of the elbow joint; and pain.  

If the service-connected right elbow disability is rated under the former Diagnostic Code 7805, the disability is rated according to the limitation of function.  Diagnostic Code 5206 rates limitation of flexion of the forearm.  Diagnostic Code 5207 rates limitation of extension of the forearm.  Diagnostic Code 5213 rates the elbow according to impairment of supination or pronation.  

A higher rating is not warranted under Diagnostic Code 5206, limitation of flexion.  The more recent November 2009 VA examination report indicates that flexion of the right forearm was zero degrees to 130 degrees.  Normal flexion of the elbow is zero degrees to 140 degrees.  See 38 C.F.R. § 4.71a, Plate I.  The medical evidence dated prior to November 2009 shows that there was full range of motion of the right elbow with pain.  See the VA examination reports dated in August 1998 (full range of motion of the elbow), August 2001 (scars did not interfere with motion), and March 2004 (full range of motion) and the May 2003 private evaluation report (full range of motion).  A rating in excess of 10 percent is not warranted under Diagnostic Code 5206 because there is no evidence of a limitation of flexion of the right elbow to 90 degrees or less, even when pain is considered.  When pain is considered, flexion is only limited by 5 or 10 degrees, to 125 to 130 degrees.   

There is no evidence of a limitation of extension of the right elbow for the entire appeal period, so a higher rating is not warranted under Diagnostic Code 5207.  

The November 2009 VA examination report shows that supination of the right arm was limited to 25 to 30 degrees.  Under Diagnostic Code 5213, supination limited to 30 degrees or less warrants a 10 percent rating.  Pronation of the right elbow was full.  Thus, a higher rating under Diagnostic Code 5213 is not warranted.  

The Board has considered the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 205-208 (1995), which relate to functional loss due to pain, weakness or other musculoskeletal pathology.  Prior to the November 2009 VA examination, the service-connected residuals of a right elbow shrapnel wound with scar have not been shown to result in limitation of motion or associated functional loss and there was full range of motion of the right elbow.  

The November 2009 VA examination showed a limitation of flexion of 5 to 10 degrees and a limitation of supination to 30 degrees.  

The Board finds that the minimal limitation of flexion, the complaints of pain, occasional decreased grip strength and increased pain with repetitive motion is more than adequately compensated for under the 10 percent rating for the service-connected residuals of a right elbow shrapnel wound.  There is no objective evidence of a greater degree of functional loss attributable to the service-connected residuals of a right elbow shrapnel wound than that commensurate with the assigned 10 percent rating.  

The Board has considered the appropriateness of other potentially applicable Diagnostic Codes for rating the service-connected right elbow disability.  Diagnostic Codes 5209-5212 are inapplicable, since the Veteran does not have any malunion, nonunion, or joint fracture of the elbow or impairment of the radius, ulna, flail joint. 

A higher rating is not warranted under the former Diagnostic Codes 7803 and 7804 or the revised Diagnostic Codes 7801 to 7804 for rating scars.  The evidence of record shows that the scar due to the shrapnel wound is located on the lateral aspect of the right elbow at the level of the proximal radius.  See the March 1995 private medical records by Dr. C. which indicate that this scar was from the entry of the bullet fragment.  

For the entire appeal period, this scar has been nontender, smooth, and healed.  The November 1969 VA examination report indicates that the scar was 1 and 1/4 inch by 3/8 inches and the scar was superficial, smooth, healed, and asymptomatic.  The June 1983 VA examination report indicates that the scar over the posterior forearm, just below the olecranon, was 3 centimeters long.  The scar was healed, nonadherent, and pliable.  

The August 1998 VA examination report indicates that there was a 1 inch scar paralleling the ulna.  The scar was non-keloidal, non-swollen, and nonadherent.  There is also evidence of a circumferential 1 and 1/2 inch scar over the right lateral epicondyle; this scar was slightly tender, well-healed, non-swollen, and nonadherent.  The medical evidence shows that this scar was due to surgery from the lateral extensor muscle release performed in 1988.  See the 1995 private medical records.  The medical evidence establishes that the right lateral epicondylitis was related to the Veteran's work and was not service-connected.  See the March 2004 VA examination report.  

The March 2004 VA examination report indicates that the scars on the right elbow were well-healed, and nonpainful on palpation.   

The November 2009 VA examination report indicates that the scar due to the shrapnel wound was 1 inch in length.  It was slightly depressed, well-healed, and nontender. There was no sign of inflammation, edema, or keloid formation.  There was some underlying soft tissue damage as evidenced by the slight depression of the scar.  The examiner stated that the scar was more than superficial and was considered to be deep as evidenced by the slight depression of the scar.  The scar was not adherent to the underlying tissue.  

The VA's schedule for rating skin disorders was revised as of August 30, 2002 and October 23, 2008.  It should be pointed out, however, that the revised rating criteria may not be applied to a claim prior to the effective date of the amended regulation.  See 38 U.S.C.A. § 5110(g) (West 2002); VAOPGCPREC. 3-2000 (Apr. 10, 2000).  See also Rhodan v. West, 12 Vet. App. 55, 57 (1998), vacated on other grounds by 251 F.3d 166 (Fed. Cir. 1999).  

With respect to the applicable rating criteria for scars in effect prior to August 30, 2002, a 10 percent evaluation is the maximum evaluation assignable under Diagnostic Codes 7803 and 7804, respectively, for superficial, poorly nourished scars with repeated ulceration, or for superficial scars which are tender and painful on objective demonstration.  As discussed above, the scar on the right arm is well healed.  There is no evidence of poor nourishment, repeated ulceration, or tenderness or pain on objective demonstration.  Thus, a higher or separate rating is not warranted under Diagnostic Codes 7803 or 7804.  See 38 C.F.R. § 4.14. 

As discussed above, a higher rating is not warranted under the former Diagnostic Code 7805, limitation of the part affected.  Scars may be evaluated on the basis of any related limitation of function of a bodily part which they affect.  38 C.F.R. Part 4, Diagnostic Code 7805 (in effect prior to August 30, 2002).

A higher rating is not warranted under the amended Diagnostic Code 7802 because the scar does not exceed 12 square inches.  Ratings in excess of 10 percent are not warranted under Diagnostic Codes 7802 and 7803.  Separate ratings are not warranted under these diagnostic codes because the scar on right arm is well-healed.  There is no evidence that the scar is unstable or painful on objective examination.  It is apparent that shortly after service, the Veteran's service-connected right elbow scar was clinically described as approximately 1-1/4-inch by 3/8, superficial, smooth, healed, and asymptomatic.  Even decades later in the early 1980's, that scar was clinically described as 3-cm long, healed, and located over the forearm posteriorly, just below the olecranon.  The scar was pliable and nonadherent; and the elbow had normal range of motion.  

Although employment medical records indicate that in the mid-1980's, the Veteran had right elbow pain and an x-ray showed a metallic foreign body in the proximal forearm, private medical opinion attributed the elbow pain, which was diagnosed as lateral epicondylitis, to a 1985 right elbow injury the Veteran sustained at work lifting heavy mail sacks, on the grounds that the metallic foreign body was not located in the painful area in question.  Additionally, a March 2004 VA medical opinion attributed the lateral epicondylitis to the Veteran's work.  After that industrial-related right elbow injury, the Veteran required right elbow surgery in the late 1980's and a postoperative scar on the elbow resulted.  

However, it is significant that neither scar on that elbow has been clinically symptomatic, except for slight tenderness of the scar related to the postoperative residuals of lateral epicondylitis.  See the August 1998 VA examination.  However, subsequent VA examinations revealed that the scarring was nontender and otherwise essentially asymptomatic.  Although the Veteran alleges difficulty lifting heavy objects, this appears related to the postoperative residuals of lateral epicondylits, not the essentially asymptomatic service-connected shrapnel wound residual scar.  It should be pointed out that symptomatology attributable to disabilities for which service connection is not in effect may not be considered in evaluating the severity of service-connected disability for rating purposes, to the extent reasonably differentiable therefrom.

Thus, under either the former or revised Diagnostic Codes in question, the shrapnel wound residual scar on the right elbow does not meet the criteria for assigning an evaluation in excess of 10 percent.  

There is no evidence of arthritis of the right elbow joint.  Thus, Diagnostic Codes 5003 and 5010 are not for application. Regarding the Diagnostic Codes pertinent to rating orthopedic manifestations of the elbow and forearm, Diagnostic Codes 5205 to 5213, these Diagnostic Codes were considered in the discussion above (concerning whether there was any functional limitations or loss of the part affected under Diagnostic Code 7805).  There is no evidence of ankylosis, fracture, arthritis, or degenerative joint disease in the right elbow.    

The evaluation of the same disability under various diagnoses is to be avoided.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14 (2010).

The Court has emphasized that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).

Notwithstanding 38 C.F.R. § 4.14, VA is required to provide separate ratings for separate manifestations of the same disability which are not duplicative or overlapping.  Esteban v. Brown, 6 Vet. App. 259 (1994), 38 C.F.R. § 4.25 (2010). 

The Board finds that a separate compensable rating under Diagnostic Codes 7801 to 7805 and Diagnostic Codes 5205 to 5213 in addition to the 10 percent rating under Diagnostic Code 5305 is not appropriate in this case.  

As discussed in detail above, the scar as a residual of the shrapnel wound to the right elbow is essentially asymptomatic and does not cause any different or separate symptoms.  The currently assigned 10 percent rating under Diagnostic Code 5305 is assigned for the manifestations of a retained metallic fragment between the proximal right radius and ulna, approximately 2 and 1/2 centimeters distal to the radial head; limitation of flexion and supination of the elbow joint; pain.  The evidence does not demonstrate that the scar on the right elbow causes any different manifestations.  As discussed in detail above, the scar is not compensable based upon the size or other characteristics of a scar.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805.  Pain is contemplated in the rating for muscle disabilities.  See 38 C.F.R. § 4.56.  Thus, even if the scar caused pain, pain in the right elbow due to the shrapnel wound and retained foreign bodies cannot be differentiated from pain due to the scar.  The pain is in the same anatomical area and is the same manifestation.  

A separate compensable rating under Diagnostic Codes 5205 to 5213 in addition to the 10 percent rating under Diagnostic Code 5305 is not appropriate in this case.  Diagnostic Code 5305 contemplates limitation of flexion and supination of the elbow.  Thus, a separate rating under Diagnostic Codes 5206 and 5213 would amount to compensation for the same symptomatology, and this is prohibited by 38 C.F.R. § 4.14.  

The rule against pyramiding precludes the use of multiple codes to artificially inflate the service-connected evaluation.  38 C.F.R. § 4.14.  The Board finds that the 10 percent rating under Diagnostic Code 5305 best reflects the overall disability picture shown for the specific anatomical part involved.  The Board is of the opinion that the code and rating currently assigned most accurately reflect the actual degree of functional impairment demonstrated in this case for the Veteran's right elbow disability.

The Board has also considered whether a higher extraschedular rating is warranted for the service-connected residuals of a shrapnel wound of the right elbow.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.

Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009).

Here, the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology.  The criteria in former and revised versions for rating scars, orthopedic injuries, and muscle injuries rate the disability on the basis of limitation of motion and limitation of function.  

The demonstrated manifestations are contemplated by the provisions of the rating schedule.  As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate.

Moreover, there is no evidence of required hospitalization for the service-connected residuals of the shrapnel wound of the right elbow.  The evidence shows that the Veteran's ability to work was affected by the nonservice-connected right elbow tendonitis or epicondylitis in 1985.  Medical evidence dated after 1985 shows that the Veteran had increased pain with repetitive motion of the right arm, which may interfere with employment duties.  However, there is no medical evidence which establishes that there was a marked impact on the Veteran's occupation.  

The currently assigned 10 percent disability evaluation is an acknowledgment on the part of VA that some interference with employment exists.  See 38 C.F.R. §§ 3.321(a), 4.1; see also Van Hoose, supra.  There is no evidence of marked interference in this case.  Thus, the Board finds no basis for referring the case for an extraschedular evaluation.  Id.

The Board further finds that a staged rating is not warranted in this case.  The Board has examined the record and as discussed above, the Board finds that a 10 percent evaluation and no higher is warranted for the entire appeal period.  A staged rating under Fenderson is not warranted.

In summary, for the reasons expressed, the Board concludes that the preponderance of the evidence is against the assignment of an initial disability evaluation in excess of 10 percent for the service-connected residuals of a shrapnel wound to the right elbow.  Accordingly, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


II.  An Increased Evaluation in Excess of 10 Percent for a Right Hand Shrapnel Wound.

Factual background

According to the Veteran's service treatment records, he sustained multiple shrapnel wounds, including to the right hand, from enemy small arms fire and grenade.  The wounds were debrided.  After the Veteran was transferred to a stateside hospital for further treatment, an examination of that hand was negative, except for right hand scarring and radiographic findings of a longitudinal fracture at the base of the 2nd right metacarpal and a chip fracture of the distal portion of the 1st right metacarpal near the carpophalangeal joint.  Paresthesias distal to the scars on the dorsum of the right hand were noted to be of no consequence, and only involved some sensory loss.  He received an injection for swelling and tenderness over the 1st metacarpophalangeal joint.  There was full range of motion and good hand function, and the wounds were described as healed on hospital discharge.  The veteran was discharged from the hospital in May 1968 and was returned to full duty.  

On January 1969 service separation examination, the upper extremities were clinically unremarkable, except the right thumb and posterior aspect of the right hand each had a 2-inch scar.  A history of multiple shrapnel wounds, including the right hand, with healed fractures of the 2nd metacarpal and a distal metacarpal chip fracture, were noted as "NCD" [not considered disqualifying].  

On November 1969 VA orthopedic examination, clinically, the right wrist and fingers, including the carpal, metacarpal, and interphalangeal joints, all had full, painless ranges of motion and appellant was able to oppose all fingers to the thumb.  Right hand grip strength was normal.  The right hand had a 1-1/8-inch by 1/8-inch scar over the dorsum and a 1-inch by 1/8-inch scar over the dorsal base of the thumb; and these scars were described as superficial, smooth, healed, nontender, barely visible, and asymptomatic.  

On August 1998 VA orthopedic examination, the Veteran's stated that due to his job requiring considerable paper work, the right hand was painful and occasionally swollen, and fatigued easily.  Clinically, the right hand had a sharp, pointy hard piece medially adherent to the dorsum of the 2nd metacarpal, approximately 1-1/2-inch proximal to the metacarpal head.  This was slightly tender, non-swollen, and fixed in place, although the skin moved easily over it.  The right hand had full range of motion and no atrophy, with full painless right wrist motion.  

In a November 1999 written statement, the Veteran reported that in November 1995, he was involved in a motor vehicular accident and as a result of receiving an MRI, began experiencing severe pain and numbness in the hand and arm.

During a December 1999 RO hearing, the Veteran testified as to the nature and severity of his disability at issue.  

On August 2001 VA orthopedic examination, the Veteran reported that his work position required typing and this repetitive action caused right hand pain.  Clinically, the right wrist had good range of motion with normal dorsiflexion and palmar flexion.  There was an area of tenderness over the dorsum of the hand overlying the 2nd and 3rd metacarpal shafts, which the Veteran referred to as an area of shrapnel.  X-rays of the right hand revealed tiny foci of shrapnel in the dorsum overlying the 2nd and 3rd metacarpals.

On August 2001 VA dermatologic examination, there was a 3 by .1-cm, linear scar on the right hand dorsum and a .3 by .3-cm, atrophic scar at the base of the right thumb.  The scars were not painful on palpation and did not interfere with range of motion.  

Private clinical records by Dr. C. dated in May 2003, the Veteran's complaints included right upper extremity pain and weakness, with occasional intermittent numbness.  Clinically, there was right elbow lateral epicondyle tenderness with decreased grip strength compared to the left hand.  The right wrist exhibited full, normal, painless ranges of motion.  There was a palpable metallic fragment over the base of the 2nd metacarpal.  X-rays of the right hand were interpreted as showing two small "bone" fragments in the dorsum of the right hand.  An electrodiagnostic study to rule out right carpal tunnel syndrome was recommended.  

On March 2004 VA orthopedic examination, the Veteran's complaints included a painful right hand and elbow, particularly on repetitive motion and lifting, and occasional numbness in the right hand dorsum.  At rest, he had no symptoms.  Clinically, there was no effusion, swelling, or erythema in the right hand.  The right wrist and all fingers of the right hand had full ranges of motion.  The right upper extremity had "5/5" strength.  

The Veteran was afforded VA examinations of the right hand in November 2009 and January 2011.  

Discussion

The RO originally assigned a 10 percent rating for the Veteran's service-connected residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals under Diagnostic Code 5309, muscle injury to the intrinsic muscles of the hand.  See January 1970 rating decision sheet.  

Diagnostic Code 5309 provides that the intrinsic muscles of the hand include the thenar eminence; short flexor opponens, abductor and adductor of the thumb; hypothenar eminence; short flexor, opponens and abductor of the little finger; 4 lumbricales; and 4 dorsal and 3 palmar interossei.  Note:  The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc.  Such a disability is to be rated on limitation of motion, with a minimum rating of 10 percent.  38 C.F.R. Part 4, Diagnostic Code 5309.

In the present case, the minimum 10 percent rating is assigned for painful motion of the fingers of the right hand, including pain with repetitive motion or use.  the objective medical evidence establishes that the shrapnel wound to the right hand and fingers does not cause limitation of motion of the fingers.  The medical evidence shows that the shrapnel wound caused fractures to the first and second metacarpals, which is the thumb and index finger.  Service treatment records show that when the Veteran was discharged from the hospital in May 1968, he had full range of motion and good function of the right hand.  

Upon VA examination in August 1998, there was full range of motion of the right hand.  A March 2004 VA examination report indicates that the Veteran reported having pain in the right hand with repetitive motion and lifting.  Examination revealed that all fingers of the right hand had full range of motion.  

A November 2009 VA examination report indicates that the Veteran reported having intermittent pain in the right hand.  The pain was brought on by repetitive use involving squeezing, turning the lids off jars, hammering or throwing a ball.  The Veteran indicated that any kind of repetitive use will cause pain in the right hand over the previous fracture sites of the first and second metacarpals.  He also had flare-ups with changes in the weather.  He stated that he takes aspirin or Advil which gives him relief with no further decrease in function.   

Physical examination revealed that the second, third, fourth, and fifth fingers on the right hand were able to easily touch the palmer surface.  The right thumb was unable to touch the palmer surface.  

A January 2011 VA examination report indicates that the Veteran reported that his right hand disability had not changed since the November 2009 VA examination.  He reported having daily pain in particular with repetitive movement.  The pain was localized to the first and second metacarpophalangeal joints.  Physical examination revealed that there was no appreciable gap between the thumb and fingers with the thumb attempting to oppose the fingers.  This was measured multiple times with repetitive movements and there was no appreciable gap noted between the thumb pad and the fingers while attempting to oppose the fingers.  There was no gap noted between the tips of the fingers and the proximal transverse crease of the palm.  There was no appreciable gap that could be measured between the tip of the thumb and the fingers.  

Range of motion of the fingers of the right hand was as follows: there was normal range of motion for the long finger, ring finger, and small finger with all motion and with repetition.  Range of motion of the right thumb was zero to 30 degrees in the proximal interphalangeal and the metacarpophalangeal joints.  After the repetitive use, the range of motion of the right thumb was not further limited by pain, fatigue, weakness, or lack of endurance.  Regarding the index finger, range of motion of the proximate interphalangeal joint and metacarpophalangeal joint was zero to 90 degrees.  Range of motion for the distal interphalangeal joint was zero to 50 degrees.  There was no additional limitation of motion of the index finger and thumb with repetitive movement times 3, and the motion was not further limited by pain, fatigue, weakness, or lack of endurance.  

The Veteran had normal dexterity with twisting, probing, writing, touching, expression, pushing, and pulling and with repetitive use, he felt increasing pain but there was no appreciable decrease in the range of motion.  

The criteria for a higher evaluation for the service-connected residuals of a shrapnel wound to the right hand would not be warranted under either the old or amended provisions of 38 C.F.R. § 4.71(a) that pertain to finger amputations, limitation of motion, and ankylosis.  

There is no evidence of unfavorable ankylosis of the right thumb, index finger, or middle finger at any time since the injury.  There is no evidence of ankylosis of the metacarpophalangeal joint or the proximal interphalangeal joint of the thumb, index or middle fingers.  There is motion of the fingers to the palm.  See the January 2011 and November 2009 VA examination reports.  The November 2009 VA examination report notes that the right thumb was unable to touch the palm but the report does not indicate that there was more than 2 inches between the palm and the thumb.  There is no objective evidence of a gap of more than 2 inches between the thumb and palm at any time during the appeal period.  Thus, higher or separate ratings under Diagnostic Codes 5218 and 5219 are not warranted.  

There is no evidence of favorable or unfavorable ankylosis or limitation of motion of the index or middle fingers.  See the VA examinations dated in January 2011, November 2009, August 1998, and March 2004.  Thus, a higher rating is not warranted under Diagnostic Codes 5222, 5223, 5225 and 5226.   

A higher rating is not warranted under Diagnostic Code 5224, since there is no evidence of unfavorable ankylosis of the thumb.  

Regarding the revised provisions for rating limitation of motion of the fingers, a higher rating is not warranted.  A higher rating is not warranted under Diagnostic Code 5228, limitation of motion of the thumb.  As noted above, the Veteran was able to touch the thumb pad to the opposing fingers.  Regarding Diagnostic Code 5229, limitation of motion of the index and long fingers, the Veteran was able to touch the index and long fingers to the proximal transverse crease.  There was no limitation of extension of the index or long fingers.  

There is no evidence of ankylosis of the fingers of the right hand.  Thus, higher ratings under the diagnostic codes pertinent to ankylosis are not warranted.  

A higher rating is not warranted under Diagnostic Code 5218 or 5219, unfavorable ankylosis of multiple digits.  The medical evidence shows full range of motion of the middle and index fingers.  There was some limitation of motion of the thumb but the thumb was able to touch the opposing fingers.   

A higher rating is not warranted under Diagnostic Codes 5222 or 5223, since there is no evidence of favorable ankylosis of the index finger or middle finger and the thumb could oppose to each finger.  A higher rating is not warranted under Diagnostic Codes 5224, 5225, or 5226 for the same reasons.  

There is limitation of motion of the thumb and index finger of the right hand.  See the January 2011 VA examination report.  However, this does not warrant a rating in excess of 10 percent.  There is limitation of motion of the thumb but the thumb was able to oppose all fingers.  There was some limitation of flexion of the index finger but there was no evidence of limitation of extension.  See the January 2011 VA examination report.   The right index finger could touch the palm of the right hand.  

The Board also finds that residuals of the shrapnel wound of the right hand does not result in limitation of motion of the other digits or interfere with the overall function of the hand.  The January 2011 VA examination report indicates that the Veteran had normal dexterity of the right hand with twisting, probing, writing, touching, expression, pushing, and pulling. The March 2004 VA examination report indicates that there was full range of motion of all digits and normal muscle strength.  The August 1998 VA examination report indicates that there was full range of motion of the right hand with no atrophy.   

The Board has also considered whether a higher rating may be assigned to the right hand disability on the basis of functional loss due to pain under 38 C.F.R. § 4.40 or functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca, supra.

The medical evidence of record shows that the Veteran has intermittent pain in the right hand with pain with repetitive use.  There is also evidence of occasional swelling and easy fatigue, tenderness over the dorsum of the right hand over the 1st, 2nd and 3rd metacarpals, and occasional numbness in the right hand.  

However, there is no evidence of additional limitation of motion or loss of function due to pain, fatigue, weakness, or lack of endurance.  The January 2011 VA examination report notes that range of motion of the long, middle and small fingers on the right hand was normal.  There was no appreciable gap between the thumb and fingers, and this was measured multiple times with repetitive movements.  There was some limitation of motion of the right thumb and index finger but this limitation of motion was not further limited by pain, fatigue, weakness, or lack of endurance with repetitive movement.  There was no appreciable gap when the Veteran attempted to oppose the fingers with the thumb.  The right hand had normal dexterity.  

The November 2009 VA examination report notes that the motion of the right index finger decreased with repetitive movement due to pain.  With repetitive motion, the range of motion of the distal interphalangeal joint of the index finger decreased by five degrees on flexion.  There was no evidence of a decrease in extension.  This amount of limited motion due to pain is not compensable under the revised Diagnostic Code 5229, and this amount of decreased motion does not warrant a rating in excess of the currently assigned 10 percent.  

A May 2003 orthopedic evaluation indicates that there was decreased grip strength in the right hand compared to the left.  However, medical evidence dated before and after May 2003 showed full strength in the right hand.  The March 2004 VA examination, the April 2006 VA neurological examination, and January 2007 VA neurological examination reports indicate that the Veteran had 5/5 muscle strength.  The November 2009 and January 2011 VA examination reports note that there was no evidence of weakness in the right hand.  The November 2009 VA examination report indicates that grip strength was normal.  

The Board also notes that upon examination in August 1998, the right hand had full motion.  There was no atrophy.  The August 2001 VA examination report notes that there was no atrophy of the right hand.  The March 2004 VA examination report notes that there full range of motion of the right hand fingers and normal strength.  

The medical evidence shows that the functional impairment due to the residuals of the shrapnel wound to the right hand amounts to pain and some limited motion with repetitive use for the entire appeal period.  The Board finds that the currently assigned 10 percent rating contemplates this functional impairment.  On the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted.  

Although the Veteran complains of occasional right hand weakness, pain, or fatigue on repetitive use, the 10 percent evaluation in effect adequately compensates him for that degree of impairment shown.  See 38 C.F.R. §§ 4.10, 4.40, and 4.45 and DeLuca.  

There is medical evidence of degenerative joint disease in the right hand due to the shrapnel wound.  See the November 2009 VA examination report.  Arthritis due to trauma is rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010. 

Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003. 

In the present case, as discussed above, a rating in excess of 10 percent is not warranted for the residuals of a shrapnel wound to the right hand when limitation of motion of the fingers is considered.  Thus, a higher rating not warranted under Diagnostic Code 5003.  

The Board had also considered whether a higher rating is warranted for the residuals of the shrapnel wound to the right hand under Diagnostic Codes 5307 and 5308, muscle injury to muscle groups VII and VIII, which affect the flexion and extension of the fingers and extension and abduction of the thumb.  

In order for a higher rating to be assigned under Diagnostic Codes 5307 and 5308, the medical evidence must show moderately-severe or severe muscle impairment.  

The Board finds that the residual disability of the shrapnel wound to the right hand more closely approximates the criteria for moderate muscle disability, not moderately-severe or severe muscle injury.  

Regarding the history and complaints of the wound to the right hand, the service treatment records show that the Veteran sustained multiple shrapnel wounds to the right hand from enemy smalls fire and grenade.  The shell fragment penetrated the dorsum of the right hand, causing fractures at the base of the right thumb and index finger with resultant scarring.  As discussed above, the Veteran was hospitalized from February 14, 1968 to May 21, 1968 for treatment of the wound.  The wounds were debrided.  

After the Veteran was transferred to a stateside hospital for further treatment, an examination of that hand was negative, except for right hand scarring and radiographic findings of a longitudinal fracture at the base of the 2nd right metacarpal and a chip fracture of the distal portion of the 1st right metacarpal near the carpophalangeal joint.  Paresthesias distal to the scars on the dorsum of the right hand were noted to be of no consequence, and only involved some sensory loss.  He received an injection for swelling and tenderness over the 1st metacarpophalangeal joint.  There was full range of motion and good hand function, and the wounds were described as healed on hospital discharge in May 1968.  The Veteran was returned to full duty.  There is no evidence of an inability to keep up with work requirements.    

Regarding objective findings, there is evidence of entrance scars.  The scars are well-healed and asymptomatic.  There scars wee not adherent or depressed.  There were not exit scars.  There was no loss of deep fascia or muscle substance or significant muscle damage.  There is no evidence of soft, flabby muscles of the right hand.  There was decreased grip strength upon examination in May 2003.  However, VA examinations before and after that date show normal grip and muscle strength.  

There is evidence of fractures of the 1st and 2nd metacarpals and a bone chip fracture in the 1st metacarpal of the right hand.  There is no evidence of shattered fractures or open comminuted fractures in the right hand.  The muscles do not swell or harden abnormally in contraction.  There is no evidence of severe impairment of strength, endurance, or coordination.  There is no evidence of atrophy.    

Although the Veteran complains of occasional right hand weakness, pain, or fatigue on repetitive use, and apparently there is a shrapnel fragment just under the skin on the dorsum of that hand, the 10 percent evaluation in effect adequately compensates him for that degree of impairment shown.  See 38 C.F.R. §§ 4.10, 4.40, and 4.45 and DeLuca.  

Based on the evidence of record, the Board finds that a rating in excess of the 10 percent evaluation is not warranted pursuant to Diagnostic Codes 5307 or 5308.  38 C.F.R. § 4.73, Diagnostic Codes 5307 or 5308.  

A rating in excess of 10 percent is not warranted for the residuals of the shrapnel wounds to the right hand under the former or revised criteria for rating scars.  The August 2001 VA examination report indicates that one scar on the right hand was 3 by .1 centimeters on the right hand dorsum and another scar was .3 by .3 centimeters on the base of the right thumb.  The scars were not painful on palpation and did not interfere with range of motion.  

The November 2009 VA examination report indicates that the four or five scars of the right hand were difficult to make because the scars blended into the mottled skin resulting from years of sun exposure.  The examiner indicated that most of the scars were a quarter of an inch long and one or two of them were a half inch long.  The examiner noted that the scars were where the shrapnel was extracted.  There was a 1/4 inch scar over the 1st metacarpal joint area which represents the extraction of the shrapnel.  

A higher or separate rating is not warranted under the former Diagnostic Codes 7803 or 7804.  There is no evidence of poor nourishment, repeated ulceration, or tenderness or pain on objective demonstration.  

A higher rating is not warranted under Diagnostic Code 7805.  As discussed above, a rating in excess of 10 percent is not warranted under the rating criteria for rating limitation of motion of the fingers.  

Under the revised Diagnostic Codes 7801 to 7805, a higher or separate rating is not warranted.   The scars on the right hand do not exceeded an area of 6 square inches.  There is no evidence that the scars are superficial or painful on objective demonstration.  As discussed above, a rating in excess of 10 percent is not warranted under the rating criteria for rating limitation of motion of the fingers.  

The Board finds that a separate compensable rating under Diagnostic Codes 7801 to 7805 and Diagnostic Codes used for rating limitation of motion and ankylosis of the fingers in addition to the 10 percent rating under Diagnostic Code 5309 is not appropriate in this case.  

As discussed in detail above, the scars as a residual of the shrapnel wound to the right hand are essentially asymptomatic and do not cause any different or separate symptoms.  The currently assigned 10 percent rating under Diagnostic Code 5309 is assigned for the manifestations of a retained metallic fragments in the right hand, limitation of motion of the right index finger and thumb, and pain.  The evidence does not demonstrate that the scars on the right hand cause any different manifestations.  As discussed in detail above, the scar is not compensable based upon the size or other characteristics of a scar.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805.  Pain is contemplated in the rating for muscle disabilities.  See 38 C.F.R. § 4.56.  Thus, even if the scars caused pain, pain in the right hand due to the shrapnel wound and retained foreign bodies cannot be differentiated from pain due to the scar.  The pain is in the same anatomical area and is the same manifestation.  

A separate compensable rating under the Diagnostic Codes used for rating limitation of motion and ankylosis of the fingers in addition to the 10 percent rating under Diagnostic Code 5309 is not appropriate in this case.  Diagnostic Code 5309 contemplates grasping movements of the fingers.  Thus, a separate rating under the Diagnostic Codes used for rating limitation of motion and ankylosis of the fingers would amount to compensation for the same symptomatology, and this is prohibited by 38 C.F.R. § 4.14.  As discussed above, rating the right index and middle fingers and thumb separately does not amount to a rating in excess of 10 percent.  

The rule against pyramiding precludes the use of multiple codes to artificially inflate the service-connected evaluation.  38 C.F.R. § 4.14.  The Board finds that the 10 percent rating under Diagnostic Code 5309 best reflects the overall disability picture shown for the specific anatomical part involved.  The Board is of the opinion that the code and rating currently assigned most accurately reflect the actual degree of functional impairment demonstrated in this case for the Veteran's right hand disability.

For the foregoing reasons, an increased rating in excess of 10 percent for the service-connected residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals is not warranted.  

The Board further finds that a staged rating is not warranted in this case.  The Board has examined the record and as discussed above, the Board finds that a 10 percent evaluation and no higher is warranted for the entire appeal period.  A staged rating is not warranted.

The Board has also considered whether a higher extraschedular rating is warranted for the service-connected residuals of a shrapnel wound of the right hand.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.

Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009).

Here, the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology.  The criteria in former and revised versions for rating scars, orthopedic injuries, and muscle injuries rate the disability on the basis of limitation of motion and limitation of function.  

Thus, the demonstrated manifestations are contemplated by the provisions of the rating schedule.  Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate.

Moreover, there is no evidence of required hospitalization for the service-connected residuals of the shrapnel wound of the right hand.  The medical evidence shows that the Veteran's ability to work was affected by the right hand disability in that the veteran did experience increased pain with repetition.  However, there is no medical evidence which establishes that there was a marked impact on the Veteran's occupation.

The currently assigned 10 percent disability evaluation is an acknowledgment on the part of VA that some interference with employment exists.  See 38 C.F.R. §§ 3.321(a), 4.1; see also Van Hoose, supra.  There is no evidence of marked interference in this case. Thus, the Board finds no basis for referring the case for an extraschedular evaluation.  Id.

In summary, for the reasons expressed, the Board concludes that the preponderance of the evidence is against the assignment of a higher disability evaluation in excess of 10 percent for the service-connected residuals of a shrapnel wound to the right hand.  Since the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application.  Gilbert, 1 Vet. App. 49.  Accordingly, on this record, the claim for a higher disability evaluation must be denied. 


ORDER

An initial evaluation in excess of 10 percent for residuals of a right elbow shrapnel wound with scar is denied.  

An initial evaluation in excess of 10 percent for residuals of a right hand shrapnel wound with fractures of the 1st and 2nd metacarpals is denied.  




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs