Citation Nr: 1800923 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-04 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for service connected residuals of a laceration of the left hand first and third digits. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from March 1988 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was remanded to the Agency of Original Jurisdiction (AOJ) in July 2016 to obtain additional treatment records and afford the Veteran a new VA examination. VA has a duty to substantially comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In accordance with Stegall, VA obtained the Veteran's outstanding VA treatment records and private treatment records. Id. Additionally, in December 2016 the Veteran received a new VA examination. Therefore, the AOJ complied with the Board's remand directives. FINDING OF FACT The Veteran's scars on his left hand were not painful or unstable. CONCLUSION OF LAW The criteria for an initial compensable rating for the Veteran's left hand scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.73, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify was satisfied by a letter sent in December 2009. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The evidence of record includes the Veteran's Service Treatment Records (STRs), his private treatment records, his VA treatment records, and the reports of his VA examinations. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2012). The Veteran received a VA examination in March 2010. In July 2016, the Board concluded this VA examination was too old to reflect the severity of his disability and remanded the case for a new examination. Subsequently, the Veteran received a new VA examination in December 2016. The Board finds the December 2016 VA examination was adequate as the examiner reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and provided detailed findings. Accordingly, the Board's duty to assist has been fulfilled. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in November 2009. Fenderson v. West, 12 Vet. App. 119 (1999). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Third, the Board must weigh the probative value of evidence in light of the entirety of the record. The Veteran's left hand scars are rated under Diagnostic Code 7804, scars unstable or painful. 38 C.F.R. § 4.73. Under this Diagnostic Code, a 10 percent rating is warranted when there are 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted where there are 3 or 4 scars that are unstable or painful. A 30 percent rating is warranted when there are 5 or more scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The Veteran's private treatment records documented the Veteran's physical therapy for his fingers. The Veteran's private treatment record noted his decreased range of motion. In addition, the private records documented the Veteran's complaints of the numbness in his third finger and pain at the base of his thumb. The private examiner noted the Veteran's trigger finger may be due to his service-connected injury. In March 2010, the Veteran received a VA examination. The examiner noted the Veteran's complaints of intermittent numbness in his thumb and middle fingers, as well as popping since 2008. The VA examiner also noted the Veteran was diagnosed with trigger fingers and wore a splint or brace during the day. The VA examiner noted there was no decrease in hand strength or dexterity. The Veteran's 2012 private treatment records continued to document the Veteran's complaints of diminished sensation. However, the private record noted the Veteran had good range of motion. The private examiner also noted the Veteran's triggering finger and stated it could be due to his service-connected injury but he could not say for certain without seeing the obvious tears operatively. The Veteran's most recent VA examination was in December 2016. His ranges of motion of the left hand and fingers were all normal. There was no pain noted on exam during use of the left hand. There was no objective evidence of localized tenderness or pain on palpation. There was no additional limitation of motion after repetitive use testing. His hand grip strength was normal and there was no atrophy. The VA examiner noted the Veteran did not experience flareups or functional loss due to impaired joint. The Veteran did not have ankylosis and had normal carpal tunnel sensory modalities. The VA examiner noted the Veteran continued to use a brace. While the VA examiner noted the Veteran's more recent x-rays showed the Veteran was developing mild arthropathy at DIP at the joint of the thumb, that finding was consistent with the natural aging process and not due to his service-connected scar. Additionally, the VA examiner noted there was no evidence of neurovascular impalement. Last, the VA examiner noted the Veteran's scars were not painful or unstable. The Board concludes a compensable rating is not warranted as there is no evidence in the record to suggest the Veteran's scars have been painful or unstable during the appeal period. Thus, the Veteran fails to meet the VA requirements for a compensable rating under Diagnostic Code 7804. 38 C.F.R. § 4.73. Additionally, the evidence does not show that the Veteran has scares that were superficial and nonlinear with an area or areas of 144 square inches (292 square centimeters) to warrant a 10 percent rating under Diagnostic Code 7802. Additionally, the scars do not produce disabling effects that warrant separate ratings. The Board notes the Veteran's continued complaints in the record of problems with numbness and limited range of motion. The Board considers these statements, but notes the December 2016 VA examiner opined that these additional developments were not due to the Veteran's service-connected injury. Furthermore, the evidence in the Veteran's private treatment records documented that the Veteran's private doctor could not say that the Veteran's triggering finger was due to his service-connected injury. Thus, while the Board considers the Veteran's lay statements, there is no probative medical evidence in the record to support the Veteran's lay contentions. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, determining the relationship between the Veteran's more recent complaints and his service-connected injury falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Determining the etiology of the numbness and limited range of motion in the Veteran's fingers requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. Furthermore, they have been investigated by a competent medical professional and found to be not supportable. Accordingly, the Board finds a rating under another Diagnostic Code pertinent to limitation of motion is not warranted. Finally, a total disability rating based on individual unemployability (TDIU) is not warranted because the Veteran does not contend, and the evidence does not show, that his service-connected disabilities renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to an initial compensable rating for residuals of a laceration of the left hand first and third digits is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs