Citation Nr: 1337949 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-03 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 10 percent for sensory impairment of musculocutaneous nerve, right (dominant) arm. 2. Entitlement to a rating in excess of 30 percent for sebaceous cyst post-excision residuals, bilateral ear lobes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and M.W. ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to April 1975. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) that denied increased ratings for both disabilities. The RO in Reno, Nevada (NV), exercises current jurisdiction of the claims file. In a June 2013 rating decision (Vol. 7), the Reno, NV, RO awarded a compensable rating of 30 percent for the bilateral ear lobe disability, effective in January 2005, the date VA received the Veteran's claim. See 38 C.F.R. § 3.400(o) (2013). The Veteran appeared at a Board hearing in March 2013 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. In addition to the paper claims file, the Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. All treatment records in the Virtual file were considered by the RO, as noted in the June 2013 Supplemental Statement of the Case (SSOC). Hence, there is no necessity for a waiver from the Veteran or a remand for RO initial review and consideration. See 38 C.F.R. § 20.1304 (2013). The issues of entitlement to benefits under 38 U.S.C.A. § 1151 for right upper extremity Muscle Group Injury and entitlement to a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the RO. Accordingly, it is referred back for appropriate action. FINDINGS OF FACT 1. The Veteran's right (major) musculocutaneous nerve impairment is moderately severe in degree. 2. The Veteran's skin disability of both earlobes is manifested by two characteristics of disfigurement. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 10 percent for right (dominant) musculocutaneous nerve impairment have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8517 (2013). 2. The requirements for an evaluation higher than 30 percent for scars, head, face, and neck, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10 (2013); 38 C.F.R. § 4.118, DC 7800 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decision appealed, in a letter dated in July 2007, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was also informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/ Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter complied with the VCAA notice requirements. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Relevant service treatment and VA medical records have been associated with the claims file. The Veteran was afforded VA examinations in October 2007, November 2011, and February 2013, which were fully adequate. The examiner reviewed the claims file, took the Veteran's history, and examined the Veteran. The examination findings fully addressed the rating criteria in issue. The Veteran requested copies of his service treatment records which the RO provided to him. Neither he nor his representative asserts that there is additional evidence to be obtained, or that there were records requested which VA did not attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the hearing, the undersigned identified the issues before the Board, and asked questions of the Veteran that ensured his testimony addressed the relevant rating criteria. Neither the Veteran nor his representative voiced any disagreement with the manner in which the hearing was conducted. Hence, the Board finds the Bryant notice requirements were complied with. Accordingly, no further development is required with respect to the duty to notify or assist. In light of the above, the Board may address the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is entitled to a staged rating for any part of the rating period on appeal where the evidence shows either of his disabilities manifested at a more severe rate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Overview The Veteran's Virtual file contains extensive VA treatment records. As noted earlier, the Board has reviewed such record, the vast majority of which are related to disabilities that are not service connected. The entries that are relevant to the appeal before the Board are noted in the discussion below. Right Musculocutaneous Nerve A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the examination reports reflect that the Veteran is right handed, and thus his right shoulder and right arm are the dominant joints. Disability from neurological disorders is rated in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale as above, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The following evidence reflects that the Veteran's symptoms have approximated at most moderate incomplete paralysis with wholly sensory involvement. Analysis By way of history, a June 1995 rating decision awarded the Veteran 10 percent compensation under 38 U.S.C.A. § 1151 for nerve damage due to surgery on the Veteran's right arm, effective in January 1994. As noted earlier, VA received the Veteran's current claim in January 2005. The Veteran's right musculocutaneous nerve disability has been rated under DC 8517. See 38 C.F.R. § 4.124a. Those criteria provide that complete paralysis is manifested by weakness, but not loss, of flexion of the elbow and supination of the forearm and warrants a 30-percent rating for the major extremity. 38 C.F.R. § 4.124a, DC 8517. Moderate incomplete paralysis warrants a 10-percent rating for either extremity, and severe incomplete paralysis warrants a 20-percent rating. Although the RO received the Veteran's claim in January 2005, it was not until October 2007 that an examination could be arranged. At the October 2007 examination (Vol. 6), the Veteran reported that, pursuant to a diagnosis of hydradenitis suppurativa, he underwent surgery at his right axilla in 1986 in a VA medical facility. Almost immediately after the surgery he started experiencing cold chills and goose bumps at the right upper extremity. He was told that the surgeon cut too deep. One of his physicians reportedly told him not to lift more than 10 pounds with his right arm. The Veteran reported further that his right-hand grip strength became weaker after surgery. His pain was worse at night and with rain. The Veteran fractured his right wrist around 1992 or 1993. During the prior two years, he started having pain, chills, and goosebumps that radiate past the elbow to his right hand. He also began to have episodes where his fingers become stuck in abduction for three to five minutes at a time. He complained that his right upper extremity had grown weaker as he aged. The examination report reflects that the Veteran took Ibuprofen 800 mg twice a day as needed for pain, with poor relief. A significant part of the examination addressed the Veteran's affected muscle groups. The pertinent rating decisions, however, note that a muscle group disability was not deemed a consequence of the Veteran's surgery. The June 1995 rating decision awarded 38 U.S.C.A. § 1151 compensation solely for the musculocutaneous nerve. The examiner noted that the affected nerve was the axillary and long thoracic nerves. The examination revealed normal sensation to vibration but decreased sensation to pain and light touch in the distribution of the medial brachial nerve. Deep tendon reflexes were diminished at the right bicep and right brachioradial, and absent at the right triceps. There was muscle atrophy at the right bicep brachia, which the examiner noted was due to mere disuse. The examiner found no paralysis present, but neuritis and neuralgia were indicated. Concerning the Veteran's activities of daily living, the examiner assessed moderate impact on chores, exercise, and recreation. Sports were precluded by the Veteran's right arm disability, and no impact on his other activities of daily living were noted. The Veteran could perform chores, but he would have to go slowly and be careful when doing so. The Board finds that the objective findings on clinical examination show the Veteran's right musculocutaneous nerve disability, when compared to complete paralysis of the nerve, more nearly approximates moderate incomplete paralysis/neuritis and the assigned 10-percent rating. 38 C.F.R. §§ 4.10, 4.124a, DC 8517. A higher rating was not met or approximated, as the Veteran's associated pathology is primarily sensory with diminished reflexes. While the examination report notes that the Veteran's right shoulder manifested limitation of motion (LOM), this was not due to the service-connected musculocutaneous nerve. Further, the examiner noted the Veteran's weakness was possibly a residual of the right wrist fracture, which also is not service connected. VA outpatient entries of February and August 2008 note that the Veteran's right arm and peripheral nerves were within normal limits. A November 2008 entry, however, notes that since the Veteran had completed his detoxification, and had been clean and sober since July 2008, he had become aware of pain that was somewhat more noticeable. His symptoms had been relatively stable. He described some weakness in his shoulder and biceps, and pain into those regions as well as a lack of sensation over the biceps and then lateral forearm with pain and cramping into the hand with repetitive movements. There was also stiffness throughout the arm and decreased shoulder range of motion due to pain. Physical examination revealed Cranial Nerves II-XII were within normal limits. Motor examination revealed normal tone but decreased bulk, though slightly at the right biceps and deltoid region. There was 4/5 power at the right deltoid region secondary to pain. The right bicep was somewhat weak, which the examiner noted was likely due to a nerve injury. Right triceps and right wrist flexors and extensors were intact, as were the intrinsic hand muscles, but there was some stiffness and complaint of pain throughout those muscle distributions with repetitive-use testing. Sensory examination revealed diminished pinprick on the inner side of the right biceps and lateral forearm, but sensory modalities were intact elsewhere throughout. Coordination was normal, except at the right deltoid region, which the examiner noted was the cause of shoulder LOM on elevation. This pathology also limited finger tap. Reflexes were absent at the right triceps and 1+ throughout the remainder of the upper extremities. The examiner noted that there was consequent damage to the Veteran's brachial plexus and particularly the musculocutaneous nerve that resulted in somewhat diminished power, diminished bulk, and ongoing neuritis with sensory abnormalities as noted on examination. Upon VA examination in February 2013, the Veteran reported intermittent severe right upper extremity pain, moderate paresthesias, and mild numbness. Physical examination revealed motor strength of 5/5 right elbow flexion and extension. Right wrist strength and grip strength were also 5/5. There was no muscle atrophy. Deep tendon reflexes were absent at the right biceps and triceps, but normal 2+ at the right brachioradialis. Sensory examination was normal at the right shoulder area, the inner/outer forearm, and at the hand/fingers. The examiner noted that there were no trophic changes due to peripheral nerve pathology. The examiner noted further as follows: the only peripheral nerve involved was the musculocutaneous nerve; the severity of the pathology was assessed as moderate incomplete paralysis; and the peripheral nerve symptomatology did not cause the loss of use of the right upper extremity. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In light of the clinical findings related to the Veteran's right upper extremity motor strength, reflexes, and sensation, the Board concludes the findings on clinical examination show moderate incomplete paralysis symptomatology related to the service-connected musculocutaneous nerve most nearly approximate the assigned 10-percent rating. 38 C.F.R. §§ 4.1, 4.10, 4.124a, DC 8517. A higher rating has not been met or approximated, as the examination findings show moderate severity when compared with complete paralysis of the musculocutaneous nerve. The Board also considered a higher rating for right musculocutaneous neuritis, but notes the examination findings of intermittently severe pain rather than constant pain. See 38 C.F.R. § 4.123. Further, while there are absent reflexes at the biceps and triceps, the examiner noted normal sensation. Hence, the Board finds no factual basis for a 20-percent rating for neuritis. Id. The examiner also noted that, while the Veteran's disability precluded manual labor, he was in fact able to perform sedentary work with some lifting restrictions. At the March 2013 Board hearing, the Veteran indicated that his left arm symptoms were more severe that his right, but he also conceded his left arm is not service connected. The undersigned also discussed with the Veteran the fact that his scar and muscle residuals from the surgery were not included in the compensation awarded under 38 U.S.C.A. § 1151. In light of the above, the totality of the evidence of record shows that, throughout the rating period on appeal, there is no basis for an evaluation in excess of 10 percent for the right musculocutaneous nerve symptomatology. Bilateral Ear Lobe By way of history, service treatment records note the Veteran required incision and irrigation of cysts on the ear lobes on multiple occasions. A January 1976 rating decision (Vol. 1) granted service connection for sebaceous cyst of the right ear lobe and assigned an initial noncompensable rating under DC 7819, effective in April 1975. Pursuant to a December 1983 Board decision, an April 1984 rating decision granted service connection for the left ear, effective in December 1983. As noted earlier, VA received the Veteran's claim for an increased rating in January 2005. At the outset, the Board notes that the criteria for rating scars were revised during the pendency of this appeal, effective October 23, 2008. The revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received. See 73 Fed. Reg. 54708 (Sept. 23, 2008); see also 77 Fed. Reg. 2909 (Jan. 12, 2012) (correcting the applicability-date language for the revised rating criteria for scars). As the claim for an increased rating was filed prior to the effective date of the revised criteria, and the Veteran has not requested consideration of his claim under the revised criteria, those criteria are not for application. Thus, all diagnostic codes discussed herein are the versions in effect prior to October 23, 2008. As the RO also considered the former criteria, the Veteran is not prejudiced by the Board's application of the criteria in effect prior to October 23, 2008. The Board also notes that the change did not impact DC 7800. Rating Criteria DC 7819 rates benign skin neoplasms under the appropriate DC. See 38 C.F.R. § 4.118. The June 2013 rating decision awarded the compensable rating under DC 7800. Under DC 7800, as in effect prior to October 23, 2008, disfigurement of the head, face, or neck with 1 characteristic of disfigurement warrants a 10 percent rating. A 30-percent rating requires visible or palpable tissue loss, and either gross distortion of asymmetry of 1 feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or 2 or 3 characteristics of disfigurement. A 50-percent rating requires visible or palpable tissue loss, and either gross distortion of asymmetry of 2 features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or 4 or 5 characteristics of disfigurement. An 80-percent rating requires visible or palpable tissue loss, and either gross distortion of asymmetry of 3 or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or 6 or more characteristics of disfigurement. The 8 characteristics of disfigurement are scars 5 or more inches (13 or more cm.) in length; scars at least .25 inch (.6 cm.) wide at the widest part; the surface contour of the scar is elevated or depressed on palpation; the scar is adherent to underlying tissue; the skin is hypo- or hyperpigmented in an area exceeding 6 square inches (39 sq. cm.); the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding 6 square inches (39 sq. cm.); or the skin is indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.). Analysis As noted earlier, the June 2013 rating decision awarded the 30-percent rating effective in January 2005, the date VA received the Veteran's claim. Hence, the Board will consider whether the bilateral ear lobe skin pathology has met or approximated a rating higher than 30 percent at any time during the rating period on appeal. As set forth below, the Veteran's disability has not manifested with visible or palpable tissue loss and more than 3 characteristics of disfigurement. The November 2007 rating decision did not address the Veteran's ear lobes. A November 2008 examination report notes that the claims file was not available for review, but the examiner reviewed the electronic records in detail. The report reflects that Veteran had undergone at least 100 procedures to incise and drain the cysts in the past. At the time of the examination, they were controlled solely by hygiene. He reported further that he had not experienced any recurrences over the prior three years, but he did have scarring as a result of the past procedures. He denied that the scars were sensitive or painful to touch. He also denied having undergone light therapy or PUVA treatment. Physical examination revealed the following for the right ear: 9 hyperpigmented 1 x 1 mm nontender scars with slight depression along the entire ear lobe. No cysts were palpable. Left ear: 4 hyperpigmented 1 x 1 mm nontender scars with slight depression along the entire ear lobe. No cysts were palpable. None of the scars produced pain; there was no adherence to underlying tissues; there was no induration or inflexibility of skin or LOM due to the scars. Neither was there any change in skin texture; ulcerations; breakdowns; soft tissue damage; inflammation; edema; or keloid formation noted. The examiner assessed two percent of the exposed area affected, and one percent of the entire body. The November 2011 examination report reflects that the examiner conducted a review of the claims file, and the examination considered the scarring of the Veteran's entire head, face, and neck. The findings were not limited to the ear lobes. The scars, at their widest point, were .5 by .5 cm, the surface contours were depressed on palpation, and there was hyperpigmentation. The scars were not painful but the skin was described as irregular, being very rough and bumpy. Upon February 2013 examination, the examiner specifically addressed the ear lobes. The examiner noted the Veteran's diagnoses of sebaceous cysts of both ear lobes. Physical examination revealed a disfiguring scar on the right ear lobe that measured as 1 cm by 2 cm at the widest point between the antitragus and the lobule of the pinna (auricle). The left earlobe had a scar between the antitragus and the lobule that was 1 cm x 1 cm at the widest point. The right earlobe scar surface contour was described as depressed on palpation, and the scars on both earlobes were of abnormal texture. The examiner noted the abnormal texture as scars of the earlobes that have small knots. There was no gross distortion or asymmetry of facial features, palpable tissue loss, or limitation of any function due to the scars. The objective findings on clinical examination at both the November 2011 and February 2013 examinations show the scarring of the earlobes to most nearly approximate the assigned 30-percent rating. 38 C.F.R. § 4.118, DC 7800 (2007). A higher, 50-percent, rating was not met or approximated, as the examination findings did not reveal more than 2 characteristics of disfigurement. Id. The examination reports note depressed skin contour, abnormal texture and-in one examination report, hyperpigmentation, which would appear to indicate three characteristics of disfigurement. Nonetheless, the objective findings show the hyperpigmented area noted was less than 39 square cm, even if both ears are combined. 38 C.F.R. § 4.118, DC 7800, Notes (1) and (2). Similarly, the size requirements for abnormal texture have also not been satisfied. The Board notes that color photographs are in the claims file and were considered by the examiners and the Board. See 38 C.F.R. § 4.118, DC 7800, Note (3). In light of the above, the evidence of the record shows the bilateral ear lobe skin pathology more nearly approximates the assigned 30-percent rating, and it has manifested at that rate throughout the entire rating period on appeal. 38 C.F.R. §§ 4.1, 4.10, 4.118, DC 7800. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an increased rating for sensory impairment of musculocutaneous nerve, right (dominant) arm, is denied. Entitlement to a rating higher than 30 percent for sebaceous cyst post-excision residuals, bilateral ear lobes, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs