Citation Nr: 1801680 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to a compensable rating for service-connected fracture, left fifth metacarpal, post open reduction and pinning. 2. Entitlement to an increased rating for service-connected laceration, right quadriceps femoris, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from June 2008 to November 2011, and earned the Valorous Unit Award, the Afghanistan Campaign Medal with two campaign stars, the Global War on Terrorism Service Medal, the Combat Infantryman Badge, and a Parachutist Badge. These matters come before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which granted service connection for fracture, left fifth metacarpal, post open reduction and pinning, evaluated as noncompensable, and laceration, right quadriceps femoris, evaluated as 10 percent disabling. The issue of whether the RO's May 2013 decision, which denied claims for service connection for bilateral ankle and bilateral knee disabilities, was based on clear and unmistakable error, has been raised by the record in a November 2017 statement from the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's service-connected fracture, left fifth metacarpal, post open reduction and pinning, is shown to have caused slight awkwardness, but not ankylosis, a limitation of dorsiflexion to less than 15 degrees, or palmar flexion limited in line with forearm. 2. The Veteran's service-connected laceration, right quadriceps femoris, is shown to have been productive of complaints of tightness, numbness, and pain, but not a moderately severe injury to Muscle Group XIV. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for service-connected fracture, left fifth metacarpal, post open reduction and pinning, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215 (2017). 2. The criteria for an initial evaluation in excess of 10 percent for service-connected laceration, right quadriceps femoris, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.56, 4.73, Diagnostic Code 5314 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to initial compensable/increased ratings for his service-connected fracture, left fifth metacarpal, post open reduction and pinning, and laceration, right quadriceps femoris. He argues that on a daily basis he has to stop whatever he is doing and rest his leg, and massage his thigh muscle. At least twice a week, he uses Advil or Ibuprofen for pain. He has shooting pain in his thigh when he tries to lift his foot towards his back. See Veteran's appeal (VA Form 9), received in April 2014. The Veteran has submitted a lay statement from D.L., dated in June 2013, which shows that he states the following: D.L. served with the Veteran in Afghanistan. The Veteran received physical therapy for his right thigh and left hand. He regularly stretched his muscles to try to retain strength and range of motion, with use of hot and cold packs to ease muscle cramps and spasms. The Veteran's physical performance deteriorated, to include loss of mobility and strength. The Veteran lost significant strength in his right thigh, and had nerve damage, with ongoing cramps and spasms, and a deformed hamstring muscle. With regard to the left wrist, the Veteran had to wear a cast for six weeks after his injury. His surgery involved placing pins in his hand. Following his surgery and physical therapy, the Veteran had stiffness in his wrist, and a loss of strength in his grip, as well as a lump of scar tissue near the base of his pinky finger. There was no improvement in function following grip strengthening exercises; he still had difficulty putting his full weight on his left hand and wrist when performing push-ups. With regard to the history of the disabilities at issue, the Veteran's service treatment records show that in February 2009, the Veteran reported that he fell asleep and rolled over onto a knife, which caused a very severe laceration of his right thigh. He was noted to have a large, deep laceration of his right thigh. The postoperative diagnoses were complex right thigh laceration, and complex self-inflicted stab wound the right anterior thigh. A February 2009 X-ray report notes that there was no evidence of arterial injury or extravasation, and that there was a 4.5 centimeter (cm.) x 3.5 cm. anterior mid-to-lower thigh defect, likely postsurgical given the recent history of debridement. In July 2010, the Veteran underwent a left fifth metacarpal open reduction with pin fixation. The postoperative diagnosis was left base of fifth metacarpal intraarticular fracture, closed. A short arm cast was applied, with a notation that healing was expected in four to six weeks, with pin removal to be done once good fracture healing was demonstrated. Multiple X-ray reports for the left hand, dated between July 2010 and July 2011, note a mildly displaced fracture of the radial space of the fifth metacarpal with interarticular extension (July 2010), removal of two percutaneous pins transfixing the base of the fifth metacarpal fracture, and anatomic alignment with progress towards fracture healing (September 2010), a healing fifth metacarpal fracture (February 2011), and a soft tissue defect without evidence of foreign body or osseous abnormality (July 2011). A February 2011 treatment report notes that there was no tenderness in palpation over the proximal fifth metacarpal, a full, pain-free range of motion, and that the Veteran was able to close and open his fist without discomfort. See 38 C.F.R. § 4.1. In May 2013, the RO granted service connection for left fifth metacarpal, post open reduction and pinning, evaluated as noncompensable, with an effective date of November 6, 2011, and laceration, right quadriceps femoris, evaluated as 10 percent disabling, with an effective date of November 6, 2011. The Veteran is appealing the original assignments of disability evaluations following awards of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by comparing the Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in a veteran's favor. 38 U.S.C. § 5107(b). Left Fifth Metacarpal, Post Open Reduction and Pinning The RO has evaluated the Veteran's left wrist disability as noncompensable under DC 5215. The Board must determine whether a higher evaluation is warranted under any applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.71a, DC 5214 (ankylosis of the wrist), a 20 percent evaluation is assigned for favorable ankylosis of the minor wrist, in 20 degrees to 30 degrees dorsiflexion. Under 38 C.F.R. § 4.71a, DC 5215 (limitation of motion of the wrist), a 10 percent rating is warranted when a wrist disability results in limitation of motion of dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. As set forth at 38 C.F.R. § 4.71, Plate I, the normal range of motion of the wrist is dorsiflexion from 0 to 70 degrees, and palmar flexion from 0 to 80 degrees, and ulnar deviation is 0 to 45 degrees and radial deviation is 0 to 20 degrees. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The only relevant medical evidence of record is a November 2012 VA wrist conditions disability benefits questionnaire (DBQ), which shows that the examiner indicated that the Veteran's claims file had been reviewed. The DBQ notes the following: the Veteran complained of "slight awkwardness." He denied any loss of motion or pain. He is right-handed. There were no flare-ups that impacted wrist function. On examination, left wrist palmar flexion was to at least 80 degrees, and there was no objective evidence of painful motion. Left wrist dorsiflexion was to at least 70 degrees, and there was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions, with no additional limitation in the range of motion following repetitive use testing. There was no functional loss or functional impairment of the left wrist. Strength of left wrist flexion and extension was 5/5. There were no residual signs or symptoms due to arthroscopic or other surgery. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. There was evidence of degenerative or traumatic arthritis in imaging studies. There was no impact on the Veteran's ability to work. The diagnosis was fracture, left fifth metacarpal, post open reduction and pinning with residual wrist pain. The Board finds that the claim must be denied. The Veteran is not shown to have ankylosis of his left wrist, therefore, there is no basis for evaluation of this disorder under DC 5214. In addition, there is no evidence to show limitation of dorsiflexion even approaching 15 degrees or palmar flexion limited in line with forearm, as required for a compensable evaluation under DC 5215. Accordingly, an initial compensable evaluation is not warranted, and the claim must be denied. The Board notes that there is a maximum noncompensable rating for a limitation of motion, or ankylosis, of the little finger. 38 C.F.R. § 4.71a, DC 5227, 5230. In addition, the Veteran is not shown to have an amputation of the left little finger without metacarpal resection, at PIP (proximal interphalangeal) joint or proximal thereto, as required for a 10 percent evaluation under 38 C.F.R. § 4.71a, DC 5156. The Board has considered whether an initial compensable evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. There is no medical evidence to show that the Veteran has limitation of motion warranting a compensable rating under DC 5215, nor does the medical evidence contain findings of symptoms such as neurological impairment, incoordination, loss of strength, or any other findings, that would support an initial compensable evaluation on the basis of functional loss due to pain. Therefore, the medical evidence is insufficient to show that the Veteran has left wrist symptoms that support the conclusion that the loss of motion in the left wrist more nearly approximates the criteria for an initial compensable evaluation under DC 5215 with consideration of 38 C.F.R. §§ 4.40 and 4.45. Finally, the Board notes that although degenerative joint disease is shown, the Veteran denied having pain or flare-ups during his VA examination, and that the examiner noted that there was no objective evidence of painful motion. Accordingly, an initial compensable evaluation is not warranted. See Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Laceration, Right Quadriceps Femoris The Veteran's laceration, right quadriceps femoris, has been evaluated as 10 percent disabling under 38 C.F.R. § 4.73, DC 5314. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73 (2017). For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55 (b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55 (a). For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions, which include 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312) and 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318). 38 C.F.R. § 4.55 (b). For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of Sec. 4.25. 38 C.F.R. § 4.55 (f). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56 (d). Furthermore, 38 C.F.R. § 4.56 (d) is essentially a totality-of-the-circumstances test and no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). Residuals of gunshot and shell fragment wounds are evaluated on the basis of the following factors: The velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective clinical findings. 38 C.F.R. § 4.56 . The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.54 (1996); 38 C.F.R. § 4.56 (c), (d). Under 38 C.F.R. § 4.56: (2) Moderate disability of muscles. (i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in- service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle injury as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting of particular functions that are controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles. (i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound. Record of consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56 (c) and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d) (2-3) (2017). The Veteran's disability has been evaluated under 38 C.F.R. § 4.73, DC 5314. Under DC 5314, Muscle Group XIV. Function; Extension of knee (2, 3, 4, 5); simultaneous flexion of hip and flexion of knee (1); tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII (1) in postural support of body (6); acting with hamstrings in synchronizing hip and knee (1, 2). Anterior thigh group: (1) sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris. 38 C.F.R. Part 4, Diagnostic Code 5314. Under 38 C.F.R. 4.73, DC 5314, a 30 percent evaluation is warranted for a moderately severe muscle injury. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 an element of 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. The only relevant medical evidence of record is a November 2012 VA muscle injuries disability benefits questionnaire (DBQ), which shows that the examiner indicated that the Veteran's claims file had been reviewed. The DBQ notes the following: the Veteran complained of tightness with maximal right knee flexion, and numbness distal to his scar. There was no history of penetrating or non-penetrating muscle injury. There was a history of injury to Muscle Group XIV on the right side. There was some loss of deep fascia, and muscle substance. There was a consistent lowered threshold of fatigue. On examination, muscle strength was 5/5 on right knee flexion and extension. There was no muscle atrophy. A CT (computerized tomography) scan showed muscle defect after evacuation of a hematoma. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner found no impact on the Veteran's ability to work. The diagnosis was laceration, right quadriceps femoris. The Board finds that an initial evaluation in excess of 10 percent is not warranted under DC 5314, as the medical evidence is insufficient to show that this disability is productive of a moderately severe muscle injury. The Veteran is not shown to have a history of a through and through or deep penetrating wound, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring, or of hospitalization for a prolonged period for treatment of the wound. 38 C.F.R. § 4.56. The Veteran has complained of tightness and numbness. He is currently shown to have some loss of deep fascia, and muscle substance, and there is a finding of consistent fatigue. However, he is shown to have 5/5 muscle strength on right knee flexion and extension. There is no evidence of such symptoms as weakness, impairment of coordination, muscle atrophy, or uncertainty of movement. The examiner concluded that his symptoms do not impact his ability to work. In summary, his symptoms are simply not shown to be sufficiently severe to warrant an increased initial evaluation. See Tropf v. Nicholson, 20 Vet. App. 317 (2006) (38 C.F.R. § 4.56 (d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling). Accordingly, the Board finds that the evidence is insufficient to show that the Veteran's Muscle Group XIV injury is productive of a moderately severe injury. An initial evaluation in excess of 10 percent under DC 5314 is therefore not warranted. Conclusion The Board has considered the Veteran's statements, and the lay statement, that the Veteran should be entitled to increased initial evaluations. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his right thigh and left upper extremity symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant increased initial evaluations. However, disability ratings are assigned by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities in issue are evaluated, are more probative than the Veteran's assessment of the severity of his disabilities, and the lay statement. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disabilities. Duties to Notify and Assist The Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. The Veteran has been afforded examinations. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (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). Based on the foregoing, the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An initial compensable evaluation for service-connected fracture, left fifth metacarpal, post open reduction and pinning, is denied. An initial evaluation in excess of 10 percent for service-connected laceration, right quadriceps femoris, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs