Citation Nr: 1758064 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-25 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to a rating in excess of 10 percent for a laceration of the right arm with hypesthesia. 2. Entitlement to a separate rating for muscle weakness in the right arm as secondary to the laceration of the right arm with hypesthesia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1969. This case comes was previously before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board for additional development in June 2016 and is now ready for appellate review. In January 2016, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C. § 7107(c) (2014). A transcript of this hearing is of record. . FINDINGS OF FACT 1. The Veteran is right-handed. 2. The service connected residuals of a laceration of the left arm do not result in deep and nonlinear scarring in an area of at least 12 square inches or 77 square centimeters (sq. cm.). 3. The service connected residuals of a laceration of the left arm are not accompanied by three or four scars that are unstable or painful. 4. Moderate disability due to incomplete paralysis associated with the service connected laceration of the right arm with hypesthesia is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a laceration of the right arm with hypesthesia are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. 4.118, 4.124a, Diagnostic Codes (DCs) 7801, 7804, 7805, 8615 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Duty to Assist/Standard of Review Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist with respect to the claim adjudicated below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this regard, the development requested with respect to the claim adjudicated herein in the June 2016 Board remand has been substantially accomplished. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Hyphenated Diagnostic Code numbers reflect the assignment of a rating under the first diagnostic Code number using the criteria of the second Diagnostic Code. See 38 C.F.R. § 4.27 (2017). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection 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 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under 38 C.F.R. § 4.118, DC 7801, burn scars or scars due to other causes, not of the head face, or neck, that are deep and nonlinear, with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). Note (1) to DC 7801 provides that a deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118 Under 38 C.F.R. § 4.118, DC 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, and that involve an area of 144 square inches (929 sq. cm.) or greater, warrant a 10 percent rating. Ten percent is the only rating assignable under this code. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under 38 C.F.R. § 4.118, DC 7804, one or two scars that are unstable or painful on examination warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional evaluation under DC 7804 when applicable. 38 C.F.R. § 4.118. Under 38 C.F.R. § 4.118, DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.124a, DC 8515, 8615 (neuritis) provides a 10 percent rating for mild incomplete paralysis of either median nerve. Moderate incomplete paralysis of the median nerve warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Id. Severe incomplete paralysis of the median nerve warrants a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. Complete paralysis of the median nerve, manifested by the hand being inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist, index and middle fingers remain extended, an inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at right angles to the palm, weakened flexion of the wrist; or pain with trophic disturbances warrants a 70 percent rating for the major extremity and 60 percent for the minor extremity. Id. Summarizing the pertinent facts with the above criteria in mind, during service in December 1968, the Veteran put his right hand though a glass window and lacerated the right arm at the cubital fossa. After service, a February 1970 VA examination of the right arm, noting that the Veteran was right handed, revealed a mild degree of hypoesthesia on the volar aspect of the right forearm from the elbow to approximately the distal third of the arm involving mainly the sensory group of the median nerve. No evidence of motor impairment or deficits was found. The examiner, assessing the residuals of the injury as "mild," also indicated there was a slight imbricated scar with subjective complaints, weakness on flexion at the elbow, and mild neuropathy of the median nerve. Based on the above findings, an April 1970 rating decision granted service connection for a disability characterized as "laceration, right arm, with hypesthesia." A 10 percent rating was assigned under DCs 8615-7805. The 10 percent rating for this disability has been continued until the present time. More recent pertinent evidence includes reports from an August 2009 VA examination, wherein the Veteran reported pain with increasing paresthesia, numbness, and tingling extending from the proximal forearm distally to the digits. The examiner noted a well-healed scar with areas of hypopigmentation, but no tenderness to palpation. There was no limitation in motion or function due to the scar. Interosseous muscle strength was equal. Wrist flexion and extension were approximately 4+/5. There was no loss of sensation and deep tendon reflexes were 2+. The diagnosis was right flexor forearm linear/serpentine scar with no clinical sequela and laceration injury with resultant neurological deficit. In assessing the limitations of the Veteran's service connected right arm disability, the examiner set forth as follows: It appears to me that he has compensated nicely over the last 30-40 years by limiting certain actions and motions, which cause unsteadiness or weakness in the right arm. However, to his own account, he has limitation which is described as the following: Difficulty with picking up his grandchildren, difficulty with carrying things with a flexed right arm, inability to perform any occupational functions with the use of his right arm above his head. This history component in conjunction with finding of slight weakness in his right distal forearm in comparison to his left forearm[] corroborates the suspicion that he has sustained functional loss due to his injury and from his history it appears that these symptoms have worsened over the last three years. The most recent VA examinations of the right arm include a July 2016 VA skin examination that showed a 9.5 cm scar in the right antecubital region, a 4.5cm scar on the dorsum of the proximal right forearm, and a 3.2cm scar in the dorsolateral proximal right arm. All these scars were healed, non-tender, and stable, and the examiner stated that the scars did not limit the Veteran's ability to do any activity. VA peripheral nerve and "elbow and forearm conditions" examinations were also conducted in July 2016, which in pertinent part included a finding of mild incomplete paralysis in the right median nerve. There was also a normal range of motion in the right arm and elbow and the examiner stated there was "no clinical diagnosis rendered in regard to the musculoskeletal aspect of the elbow and forearm[]." The Veteran reported at the examination that he had difficulty holding and carrying objects and driving due to right arm pain. The examiner found that due to his service-connected right arm disability, the Veteran is limited from prolonged heavy lifting, carrying, holding objects, writing, driving, and prolonged fine and gross manipulation of the right hand so as to prevent pain, tingling, and numbness. She also stated the Veteran is capable of entertaining light physical and sedentary employment with proper rest. VA outpatient treatment records of record, dated through May 2016 at the time of this writing, do not reflect clinical findings that differ in any significant degree from the VA examination findings set forth above as relevant to the pertinent rating criteria. Applying the pertinent legal criteria to the facts set forth above, a rating in excess of 10 percent for skin disability attributable to the service connected right arm disorder, given the location of such scarring, would require deep and nonlinear scarring in an area of at least 12 square inches or 77 square sq. cm or three or four scars that are unstable or painful. Such findings are simply not demonstrated by the clinical record, to include as summarized above, nor is there any disabling effects not contemplated by the rating assigned that would warrant increased compensate under DC 7805. In addition, as an increased rating for the Veteran's right hand on the basis of neurological deficits of 30 percent (as the Veteran is right handed, the arm affects is the major extremity) under 38 C.F.R. § 4.124a would require moderate disability due to incomplete paralysis, and only mild incomplete paralysis was shown at the most recent VA examination and there is otherwise no indication of moderate incomplete paralysis of the median nerve, a rating in excess of 10 percent under 38 C.F.R. § 4.124a, DC 8615 also cannot be assigned. In making its determinations above, the Board observes that it has considered carefully the Veteran's contentions with respect to the nature of the service-connected manifestations at issue, to include at the January 2016 hearing before the undersigned, and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability rating assigned. The competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected manifestations at issue in making the rating determinations above. Neither the Veteran nor his representative has raised any other issues with respect to the matter addressed above, nor have any other issues been reasonably raised by the record with respect to such matters. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Boards finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for a laceration of the right arm with hypesthesia; as such, the benefit of the doubt doctrine is not applicable with respect to this matter, and entitlement to a rating in excess of 10 percent for laceration of the right arm with hypesthesia must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. ORDER A rating in excess of 10 percent for a laceration of the right arm with hypesthesia is denied. REMAND As noted above, the Veteran has complained of weakness in the right arm and during his hearing, he testified that the muscles in that arm are atrophied. Further inquiry into the level of this disability and its relationship to the service connected scar is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to provide a diagnosis for any muscle disability, manifested by muscle weakness and atrophy, and opine whether it is at least as likely as not (50 percent or greater probability) that it is caused by or incurred in service or the service-connected laceration of the right arm with hypesthesia. Address the Veteran's complaints of muscle weakness and atrophy. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts) or by a deficiency in the record or the clinician (i.e. additional facts are required, or the clinician does not have the needed knowledge or training). 2. Ensure the development outlined above has been accomplished, and then readjudicate the claims on appeal. If the benefit sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs