Citation Nr: 1601247	
Decision Date: 01/12/16    Archive Date: 01/21/16

DOCKET NO. 13-02 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee


THE ISSUE

Entitlement to an initial compensable rating for a right elbow scar, the residual of a right elbow infection, claimed as cysts and lesions of right elbow (hereinafter, right elbow scar), effective September 18, 2009. 


REPRESENTATION

Appellant represented by:	Barry P. Allen, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The Veteran served on active duty from June 1974 to February 1976.

This case was previously before the Board of Veterans' Appeals (Board) in February 2015, when it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Following the requested development, the AOJ confirmed and continued the initial noncompensable rating for the Veteran's right elbow scar. Thereafter, the case was returned to the Board for further appellate action.

In June 2014, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision. In June 2015, the Veteran through counsel submitted a VA Form 9 (substantive appeal) and requested that he be schedule for a videoconference hearing. There is no information in the June 2015 VA Form 9 that constitutes good cause for the scheduling of another hearing and the request is denied. See 38 C.F.R. § 20.700(a) ("a hearing on appeal will be granted" on the claimant's request).


FINDING OF FACT

Since service connection became effective September 18, 2009, the Veteran's service-connected right elbow scar has been manifested primarily by subjective complaints of pain and weakness, elbow flexion from 0 degrees to at least 110 degrees, and forearm supination to at least 80 degrees. 




CONCLUSION OF LAW

The criteria for an initial compensable rating for a right elbow scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7805 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

The VA's Duties to Notify and Assist

Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the Veteran in the development of his claim of entitlement to an increased rating for his service-connected right elbow scar 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that the VA has met that duty. 

The record shows that on September 18, 2009, the AOJ received the Veteran's substantially complete application for entitlement to service connection for cysts and lesions of the right elbow. Thereafter, the AOJ advised the Veteran by letter of the elements of service connection and informed him of his and the VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. 

In May 2010, the AOJ granted service connection for a right elbow scar and assigned a noncompensable rating, effective September 18, 2009. The Veteran disagreed with that rating percentage, and this appeal ensued. 

Because it is derived from the initial service connection claim, the issue of entitlement to an increased rating is considered a "downstream" issue. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate the increased rating claim, such notice is not required. 

In December 2003, the VA General Counsel issued a precedential opinion stating that, if the VA received a notice of disagreement in response to a decision on a claim for which the VA had already sent the veteran a duty to assist letter, and the notice of disagreement raised a new issue (such as a claim for an increased rating), the duty to assist the veteran did not require the VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. VAOGCPREC 8-03. The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 19.5 (2015). VA has complied with its duty to notify the Veteran in the development of his claim of entitlement to an increased rating for his service-connected right elbow scar. 

The VA's duty to assist includes helping veterans to obtain evidence necessary to substantiate their claim. This could include post-service records reflecting the veteran's treatment by VA and non-VA health care providers. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Relevant evidence on file consists of records reflecting the Veteran's VA treatment from July 2008 to May 2015, his Social Security records, and the transcript of his June 2014 video conference with the undersigned Veteran's Law Judge. The duty to obtain relevant records is satisfied. 38 C.F.R. § 3.159(c).

During the Veteran's video conference, the Veterans Law Judge explained the issues fully and suggested the submission of evidence that the Veteran may have overlooked that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As a result of that video conference, the Board remanded the case for additional development. Therefore, the conduct of the video conference was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2) (2015). There was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)).

The VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Appropriate VA medical inquiry was accomplished in January 2010 and May 2015 and is factually informed, medically competent, and responsive to the issue under consideration. Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

In the spring of 2015, the Veteran appointed his current representative. On VA Form 9, date in June 2015, the representative informed the VA that in the future, he may provide a letter supplementing the Veteran's appeal with respect to his claim for a compensable rating for his right elbow scar. 

In July 2015, the Board informed the Veteran and his representative that the Veteran had 90 days to submit additional argument or evidence, if he elected to do so. The Board noted that any such request or submission had to be sent directly to the Board. See generally, 38 C.F.R. § 20.1304 (2015). To date, no additional evidence or argument has been received. 

In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. There is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal.

Analysis

During his June 2014 video conference the Veteran argued that the noncompensable rating for his service-connected right elbow scar did not adequately reflect the severity caused by that disorder. He stated that in addition to the scar, he had an underlying disability which caused right arm weakness and limitation of motion. Therefore, he maintained that an initial compensable rating was warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. 
 
Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 

In evaluating impairment of the upper extremities, it is often important to determine a veteran's major or dominant upper extremity. Impairment of a major upper extremity can frequently result in a rating higher than would be assignable for impairment of the minor upper extremity. 38 C.F.R. § 4.69 (2015). In this case, the Veteran is right-handed.

Scars which are superficial and nonlinear and do not affect the head, face, or neck are rated under diagnostic codes 7802, 7804, or 7805. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 1. A 10 percent rating is warranted when the scar covers an area of at least 144 square inches (809 sq cm) (Diagnostic Code 7802); or when the scar is unstable or painful (Diagnostic Code 7804). When there is a disabling effect(s), such as limitation of motion, which is not considered in a rating provided under diagnostic codes 7802 and 7804, it will be rated under an appropriated diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In this case, the Veteran's right elbow scar has been rated under Diagnostic Code 7805.

Limitation of motion of the forearm is rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5206 and 5207. A noncompensable rating for the major forearm is warranted when flexion is limited to 110 degrees. A 10 percent rating is warranted when flexion of the major forearm is limited to 100 degrees or extension is limited to 45 or 60 degrees. 

Impairment of supination and pronation of the forearm is rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5213. A 10 percent rating is warranted for the major upper extremity when supination is to 30 degrees or less. A 20 percent rating is warranted for the pronation when motion is lost beyond the last quarter of the arc, the hand does no approach full pronation. The arc of supination is from 0 degrees to 85 degrees. 38 C.F.R. § 4.71, Plate 1 (2015). The arc of pronation is from 0 degrees to 80 degrees. Id.

When, as in the case of supination of the forearm, the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2015).

In addition to the criteria set forth in the Diagnostic Codes, the Board will consider any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

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. 

During an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, as in this case, service connection is granted and an initial rating award is at issue, ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

Unless otherwise provided in the Rating Schedule, the disabilities arising from a single disease entity are to be rated separately, as are all other disabling conditions, if any. 38 C.F.R. § 4.25(b) (2015); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). All ratings are then to be combined to determine the overall rating. 38 C.F.R. § 4.25(b) (2015); Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran may receive separate disability ratings for scars, as well as any underlying disability, unless the conditions constitute the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14 (2015). Esteban v. Brown, 6 Vet. App. 259, 261-262 (1996); see also, VAOPGCPREC 23-97. However, the assignment of a separate rating must be based upon the presence of additional disability. 

The evidence, such as the reports of the January 2010 and May 2015 VA examinations, shows that the Veteran's right elbow scar is superficial in nature and measures no more than 5 cm long. The temperature texture and turgor of the skin is norma1, and there is no keratosis or adherence of the scar. There is no tenderness to palpation and no evidence that the scar is unstable. The Veteran does complain of pain, and is only able to flex his right elbow to 110 degrees after repetitive motion. Forearm supination after repetitive testing is accomplished from 0 degrees to 80 degrees, and forearm pronation is from 0 to 80 degrees. Although the range of motion is reduced, it is contemplated by the noncompensable rating currently in effect. 38 C.F.R. § 4.118, Diagnostic Code 7805; 38 C.F.R. § 4.71a, Diagnostic Codes 5206 and 5213. As such, it does not provide a basis for a higher evaluation. 

Although the Veteran complains of underlying pain and weakness in the right elbow, there is no evidence of a chronic, identifiable disorder (in addition to his service-connected scar) responsible for his complaints. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which a separate rating may be granted. See Sanchez-Benitez v. West, 259 F.3d 1356, 1361-1362 (2001). While the Veteran claims that he has right elbow disability in addition to his scars, the preponderance of the evidence, such as the reports of the foregoing VA examinations, and reports of VA neurologic consultations in August 2010, June 2011, December 2014, and January 2015, is against that claim. There are no other factors, such as right elbow deformity, crepitus, muscle spasm, heat, redness, swelling, weakness, atrophy of disuse, or joint instability which would assist in the identification. There are no sensory deficits, excess fatigability, or incoordination, and the reflexes in the Veteran's right upper extremity are generally normal. 

In addition, X-rays of the right elbow (such as those noted during a January 2011 Physical Residual Functional Capacity Assessment for the Social Security Administration) are normal. The Veteran has not been prescribed a brace or support for his right elbow, and during his June 2014 video conference, he acknowledged that he was not receiving treatment for his right elbow. Therefore, the Board finds that his right elbow pain is contemplated by his current evaluation. The preponderance of the evidence is against a finding that he has additional disability for which a separate rating may be granted. See Spurgeon v. Brown, 10 Vet. App. 194 (1997) (the rating schedule does not require a separate rating for pain alone). Accordingly, the current noncompensable rating is confirmed and continued, and the appeal is denied.

In arriving at this decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected right elbow scar. 38 C.F.R. § 3.321(b)(1) (2015). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). 

There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, 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. In this regard, the Board must compare 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. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's 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 claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.

Neither the first nor second Thun element is satisfied here. The Veteran's service-connected right elbow scar is manifested by subjective complaints of pain, limitation of right elbow flexion to no worse than 110 degrees, and limitation of pronation of the right forearm pronation to no less than 80 degrees. 38 C.F.R. 
§ 4.118, Diagnostic Code 7805; 38 C.F.R. § 4.71a, Diagnostic Code 5206. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's right elbow scar, because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, he does not meet the criteria for referral to the Director of the VA Compensation and Pension Service.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. During the most recent VA examination the Veteran reported that he could not pull a wrench with his right hand. However, he does not contend, and the evidence of record does not suggest, that his service-connected right elbow scar has caused him to miss work or has resulted in any hospitalizations. The Board finds, therefore, that the Veteran's service-connected right elbow scar does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.


ORDER

An initial compensable rating for a right elbow scar is denied



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs