Citation Nr: 1333411 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-00 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to December 1958, and from November 1959 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied a rating in excess of 10 percent for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII. The Veteran filed a notice of disagreement (NOD) with this determination in September 2007, and timely perfected his appeal in December 2007. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in March 2009. A written transcript of that hearing was prepared and incorporated into the evidence of record. In June 2009, Board remanded the claim on appeal for further development. Subsequently, in a September 2010 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for ulnar neuropathy of the left elbow and assigned a 10 percent rating, effective January 27, 2010. In April 2011, the Veteran filed a NOD with both the 10 percent disability rating assigned, and the January 27, 2010 effective date. The Veteran noted that the effective date should go back to the date of claim in June 2007. In May 2012, the issue of an increased disability rating in excess of 10 percent for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII was remanded for further development, and the issues of entitlement to an initial disability rating in excess of 10 percent for ulnar neuropathy of the left elbow and entitlement to an effective date prior to January 27, 2010, for the award of service connection for ulnar neuropathy of the left elbow were remanded for the issuance of a SOC. In a July 2013 decision, the AMC granted an earlier effective date of May 8, 2007 for the grant of service connection for ulnar neuropathy of the left elbow. This decision constitutes a full grant of benefits. A July 2013 SOC was issued for the an initial disability rating in excess of 10 percent for ulnar neuropathy of the left elbow; however, the Veteran did not subsequently file a substantive appeal as to that issue. Therefore, the issues of entitlement to an initial disability rating in excess of 10 percent for ulnar neuropathy of the left elbow and entitlement to an earlier effective date for the grant of service connection for ulnar neuropathy of the left elbow are not on appeal before the Board. The development in reference to the issue of the rating for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII, has been completed and the Board can proceed with the issue on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The evidence of record demonstrates a "moderate" muscle disability to Muscle Groups VII. 2. The competent and probative medical evidence of record does not show that the residuals of laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII, is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.73, Diagnostic Code 5307 (2012). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by way of a letter sent to the Veteran in May 2007 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records, and providing the Veteran with VA examinations in June 2007, January 2010, and February 2010. The Veteran has not indicated that he has received additional treatment for residuals of laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII. The Board thus concludes that there are no additional treatment records outstanding with respect to this claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012). Pyramiding involves evaluating the same disability, or the same manifestation of a disability, under different diagnostic codes and is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The residuals of laceration of the left forearm, involving Muscle Group VII, is currently rated 10 percent disabling in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. § 4.73, Diagnostic Code (DC) 5307 (2012). Under DC 5307 ratings are available for disability of Muscle Group VII, which is the muscle group that involves flexion of the wrist and fingers. 38 C.F.R. § 4.73, DC 5307. Muscles that arise from the internal condyle of the humerus are flexors of the carpus and long flexors of the fingers and thumb. Under this Diagnostic Code, a 10 percent rating is warranted for a moderate disability, a 20 percent evaluation is warranted for a moderately severe disability, and a 30 percent evaluation is warranted for a severe muscle disability, all of the minor hand. Id. In this case, the medical evidence of record clearly reflects that the Veteran is right-handed. Thus, the rating for his left forearm laceration is based on the criteria for evaluating disabilities of the minor (non-dominant) extremity. Disabilities are classified as slight, moderate, moderately severe, or severe under diagnostic code 5307. 38 C.F.R. § 4.73. These terms are described in 38 C.F.R. § 4.56(d). A slight disability of muscles stems from a simple wound of a muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1)(i). It heals with good functional results, is superficial, results in minimal scarring, and shows no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(d)(1)(i)-(iii). There are no cardinal signs of muscle disability. 38 C.F.R. § 4.56(d)(1)(ii). For a moderate disability, the type of injury is "through and through" or deep and from a single bullet; without explosive effect, residual debridement or prolonged infection. 38 C.F.R. § 4.56(d)(2)(i). The record of a moderate disability would show one or more of the cardinal signs and symptoms of muscle disability; particularly the low threshold of fatigue. 38 C.F.R. § 4.56(d)(2)(ii). Objective findings are entrance and exit scars, loss of fascia or muscle substance, and lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2)(iii). Characteristics of a moderately severe disability include: a deep penetrating wound; prolonged infection; debridement; prolonged treatment for wound; evidence of inability to keep up with work requirements; entrance and exit scars through one or more muscle groups; loss of deep fascia; and impacted strength and endurance. 38 C.F.R. § 4.56(d)(3). Characteristics of a severe disability include all of the above plus: evidence of wounds due to large or multiple missiles; shattering bone fracture; extensive debridement; prolonged infection; intramuscular binding and scarring; consistent complaint of cardinal signs; marked scars; obvious loss on palpation; abnormal contraction; X-ray evidence of multiple scattered foreign bodies; adhesion of scars; atrophy; adaptive contraction of an opposing group of muscles, etc. 38 C.F.R. § 4.56(d)(4). There is a note with DC 5309 that states the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. As a result, these muscles are rated on limitation of motion with a minimum of 10 percent. DC's 5206 and 5207 provide for a 40 percent evaluation where flexion of the minor forearm is limited to 45 degrees of motion, or extension is limited to 110 degrees. A 30 percent evaluation is warranted where flexion of the minor forearm is limited to 55 degrees or extension is limited to 100 degrees. A 20 percent evaluation is warranted where flexion of the minor forearm is limited to 70 degrees or extension is limited to 90 degrees. A 20 percent evaluation is warranted where flexion of the minor forearm is limited to 90 degrees or extension is limited to 75 degrees. Finally, a 10 percent evaluation is warranted where flexion of the minor forearm is limited to 100 degrees or extension is limited to 60 or 45 degrees. See 38 C.F.R. § 4.71a , DC's 5206-5207. DC 5208 assigns a 20 percent evaluation where the major or minor forearm has flexion limited to 100 degrees and extension limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5208. DC 5215 addresses limitation of motion of the wrist which provides for a maximum 10 percent rating. See 38 C.F.R. § 4.71a, DC 5215. The Veteran asserts that a higher disability rating is warranted for the residuals of a laceration of the left forearm, involving Muscle Group VII. The Board has determined that a disability rating in excess of 10 percent is not warranted based on the criteria for muscle injuries, and the Veteran's disability is appropriately rated as moderate. The Board notes that the Veteran was afforded a muscles VA examination in June 2007. The examiner noted that the in-service injury ultimately resulted in ulnar neuropathy, and tenderness and depression of the scar. The examiner noted that the Veteran's left forearm and hand injury consisted of an injured Group VII pronator teres muscle. The Veteran's muscle strength was noted to be 5, with no tissue loss. The Group 8 and Group 9 muscles were noted to be uninjured, with a muscle strength of 5. His muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. The examiner noted that there was evidence of an 8 cm scar above the medial condyle, tender to the touch and adherent. Additionally, there was nerve damage consisting of peripheral neuropathy. There were no residuals of tendon damage, bone damage, muscle herniation, loss of deep fascia or muscle substance, or any joint limited by muscle disease or injury. An electromyogram later that month contained findings indicative of left ulnar neuropathy with segmental compression across the elbow. The examiner concluded that the residuals of the Veteran's injury to the left hand included a scar with tenderness and ulnar peripheral neuropathy. The Veteran's condition mildly affected his usual daily activities of chores, sports, recreation, and dressing. During the hearing before the undersigned in March 2009, the Veteran testified that he noticed loss of strength of the left arm over the past few years. He claimed that his symptoms included numbness and tingling. The Veteran was afforded a VA examination in January 2010, which discussed the current severity of his neurological symptoms of pain, numbness, and weakness, and diagnosis of ulnar neuropathy. Additionally, the Veteran was afforded a February 2010 joint VA examination. Range of motion testing of the left elbow forearm were flexion of 0 to 126 degrees, extension of 0 degrees, pronation of 0 to 80 degrees, and supination of 0 to 65 degrees. The was no objective evidence of pain with active motion on the left side. However, there was objective evidence of pain following repetitive motion. There were no additional limitations after three repetitions of range of motion testing. Range of motion testing of the left wrist were dorsiflexion of 0 to 50 degrees, palmar flexion of 0 to 60 degrees, radial deviation of 0 to 30 degrees, and ulnar deviation of 0 to 25 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion testing. The examiner noted a diagnosis of left elbow laceration with residual pain, stiffness, and numbness. The examiner stated that the Veteran's condition had significant effects on his occupational activities, such as decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, weakness or fatigue, and decreased strength. The Veteran's condition moderately affected his usual daily activities of chores, exercise, sports, and recreation, and severely affected his travelling. The examiner stated that there appeared to be no joint degeneration secondary to the laceration. The Veteran submitted an April 2010 private evaluation of his left arm disability. The physician noted that for the last three or four years, the Veteran had been having some symptoms of pain over the medial side of his arm with some numbness in the hand and pain migrating up above the elbow along the medial side of the arm itself. It was worst when he was holding his elbow in flexion, reading a book at night, or driving his automobile. He was right hand dominant. He did not report swelling, popping, or grinding in any of his upper extremity joints, and maintained normal function. He had not utilized medication in an attempt to control the symptoms in his arm. There was an occasion when he actually dropped an object because he suddenly seemed to lose control of the use of his left hand, but denied any inflammatory change around the old scar or any other significant loss of upper extremity motor function. Upon examination, the Veteran was noted to have a well-healed somewhat widened scar up to 7 mm in width at various places along a 17 cm course from his medial epicondyle down to the medial aspect of his left forearm. His skin was normal in appearance, texture, quality, and color, and there was no evidence of any foreign body palpable beneath the scar. The scar was not tender or sensitive to light tough or palpation. Sensation in the fingertips in both the median and ulnar nerves were normal, and there was normal sensation over the dorsum of the hand in the radial nerve distribution. There was wide abduction of the fingers and normal strength of thumb abduction and pinch. The Wrist Allen test was normal for circulation with good flush and return of sensation in the deprived hand after three or four seconds. There was a full range of motion of the elbow and rotation of the forearm, and no atrophy interosseous or other muscles in the hand. He was sensitive to light tap and palpation over the course of the ulnar nerve at the left elbow and not the right. Reflexes were 1+ and equal. The EMG and nerve conduction velocity study was done on May 12, 2009 and confirmed the presence of a left ulnar mononeuropathy with delayed conduction time slowing to 14.3 meters per second across the left elbow. The physician concluded with diagnoses of left ulnar neuropathy of the left elbow and healed incision of the left medial forearm. The physician noted that this was a problem of moderate severity and complexity. A September 2011 VA treatment record noted that the Veteran reported left arm pain with muscle weakness and numbness. He was noted to be on morphine and neurontin. The Board finds that the Veteran's disability cannot be described as moderately severe as the objective evidence does not show a deep penetrating wound or prolonged infection. There were no entrance and exit scars through any muscle groups, no loss of deep fascia, nor impacted strength and endurance. Specifically, the June 2007 VA examiner noted that the Veteran's left forearm and hand injury consisted of an injured Group VII pronator teres muscle. The Veteran's muscle strength was noted to be 5, with no tissue loss. The Group 8 and Group 9 muscles were noted to be uninjured, with a muscle strength of 5. The muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. There were no residuals of tendon damage, bone damage, muscle herniation, loss of deep fascia or muscle substance, or any joint limited by muscle disease or injury. The objective findings comport with a finding of a lowered threshold of fatigue, thus a moderate disability of the muscles. The Board notes that a disability rating in excess of 10 percent is not warranted per DC's 5206-5208, as it is not shown that flexion is limited to 90 degrees or extension is limited to 75 degrees. As detailed, the February 2010 VA examination report reflects normal range of motion of the elbows. Also, range of motion of the wrist was normal, and ankylosis of the wrist and elbow was not demonstrated. Additionally, the April 2010 private evaluation noted that there was a full range of motion of the elbow and rotation of the forearm, and no atrophy interosseous or other muscles in the hand. The Board is cognizant of the Court decision in Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), which held that a separate evaluation could be assigned for symptomatic, residual scarring without violating the pyramid rule of 38 C.F.R. 4.14. The Board notes that a separate compensable evaluation is already in effect for left forearm scar due to residuals of a forearm laceration. Further, a residual neurological complication of the Veteran's service-connected laceration of the left forearm includes ulnar neuropathy, which has already been separately assigned a 10 percent rating. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, as outlined above, the preponderance of the evidence demonstrates that the residuals of laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII, in and of itself, has not been more disabling than the 10 percent rating assigned at any time during the pendency of this claim. As such, staged ratings are not warranted. The Board acknowledges and assigns some probative weight to the Veteran's competent and credible reports of his observable symptoms and limitations. However, the Board assigns greatest probative weight to the object VA evaluations and range of motion testing as they are the clinical standards to assess the severity of the Veteran's muscle injury as provided in the rating criteria. The results did not indicate a 20 percent rating for the appeals period. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased disability rating in excess of 10 percent for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII, and that claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In Thun, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII, to include painful scar and stiffness, numbness, and tingling, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. For this reason, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an increased disability rating in excess of 10 percent for residuals of a laceration of the left forearm from the elbow down to the mid-arm, involving Muscle Group VII is denied. __________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs