Citation Nr: 1803045 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 12-15 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis. 2. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound to the left forearm involving muscle groups VIII and IX. 3. Entitlement to a compensable rating for a scar on the left thumb. 4. Entitlement to a compensable rating for a scar on the left forearm. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to September 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his June 2012 substantive appeal, the Veteran requested a hearing at the RO. Thereafter, in June 2017, the Veteran withdrew his hearing request. Accordingly, the Board finds that his hearing request has been withdrawn. See 38 C.F.R. § 20.704(d), (e). During the course of the appeal, a March 2012 VA examiner determined that the Veteran has left elbow tendonitis that is related to his gunshot wound during military service. The Veteran is already service-connected for epicondylitis of the left elbow as a result of his gunshot wound during service. The Board finds that a separate rating for tendonitis is unwarranted because the described symptoms are impossible to separate from the symptoms of his epicondylitis. Pyramiding of ratings for the same general disorder under various diagnoses is prohibited. See 38 C.F.R. § 4.14 (2017). As such, the Board has recharacterized the claim on appeal to also reflect the Veteran's tendonitis diagnosis. FINDINGS OF FACT 1. The Veteran's residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis, has been characterized by painful motion. 2. The Veteran's injury to muscle group VIII is of a moderate severity and his injury to muscle group IV resulted in minimal limitation of motion or function with respect to his hand and fingers. 3. The Veteran's scar of the left thumb is small, stable, and not painful. 4. The Veteran's scar of the left forearm is small, stable, and not painful. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5212 (2017). 2. The criteria for a 20 percent rating, but no more, for residuals of a gunshot wound to the left forearm involving muscle groups VIII and IX, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.73, DC 5308 (2017). 3. The criteria for a compensable rating for a scar on the left thumb have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, DC 7805 (2017). 4. The criteria for a compensable rating for a scar on the left forearm have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, DC 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records as well as VA examinations are associated with the claims file. Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). Residuals of a Gunshot Wound The Veteran receives two separate ratings to compensate him for the residuals of his gunshot wound. He receives a 10 percent rating for residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis. See 38 C.F.R. § 4.71a, DC 5212. He also receives a 10 percent rating for residuals of a gunshot wound to the left forearm involving muscle groups VIII and IX. See 38 C.F.R. § 4.73, DC 5308. i. Residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis The Veteran receives a 10 percent rating under DC 5212, which addresses impairment of radius. To obtain a 20 percent rating under DC 5212, the Veteran must show nonunion in the upper half of the radius. However, there is no clinical evidence that his disability has been characterized by nonunion of the upper half of the radius. The Board has determined that the Veteran is ineligible for a rating of ankylosis of the elbow (DC 5205), nonunion of the radius and ulna (DC 5210), impairment of the ulna (DC 5211), and impairment of supination and pronation (DC 5213) as no medical records or examinations assign such attributes to the Veteran's elbow disorder. Alternatively, he may be eligible for a rating for his elbow for limitation of flexion of the forearm (DCs 5206, 5208) and limitation of extension of the forearm (DC 5207). To obtain a 10 percent rating for limitation of flexion, he must demonstrate flexion limited to 100 degrees. However, he exhibited flexion of 135 degrees during his August 2011 VA examination, 135 degrees during his January 2012 VA examination, and 120 degrees during his March 2016 VA examination. To obtain a 10 percent rating for limitation of extension, he must demonstrate extension limited to 45 degrees. However, he exhibited extension of 5 degrees during his August 2011 VA examination, 10 degrees during his January 2012 VA examination, and 0 degrees during his March 2016 VA examination. These range of motion measurements took into account the possibility of both painful and repetitive motion. Therefore, the Board concludes that a rating in excess of 10 percent is not warranted for residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis. ii. Residuals of a gunshot wound to the left forearm involving muscle groups VIII and IX The Veteran receives a 10 percent rating under DC 5208, which addresses residuals of a gunshot wound to the left forearm involving muscle groups VIII and IX. In this instance, the Board has determined that the Veteran is entitled to a 20 percent rating, but no more, for his muscle injury. When considering the combined ratings for muscle injuries, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. There are 3 muscle groups for the anatomical region of the forearm and hand (DCs 5307, 5308, and 5309). For compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55. Muscle group VIII under DC 5208 refers to extension of wrist, fingers, and thumb; abduction of thumb. The March 2016 VA examiner specifically noted that the Veteran's had injured this muscle group as a result of the gunshot wound. Muscle injuries under DC 5208 are rated based on a scale characterized by "slight," "moderate," "moderately severe" and "severe," and each of these terms is defined by a specific set of characteristics categorized by 1) type of injury, 2) history and complaint, and 3) objective findings. 38 C.F.R. § 4.56(d). Although Muscle group VIII may have been chosen by the VA examiner because of the gunshot wound to the Veteran's forearm, the Board notes that the bullet lodged in the lateral elbow and his reported complaints relate solely to his elbow. As a result, the discussion below reflects the actual effects of the Veteran's disability to his elbow. In this instance, the Board agrees with characterization that the Veteran's injury is moderate. In making this determination, the Board cites the fact that the wound is a deep penetrating wound of short track. Although there was debridement, there was no infection, sloughing of soft parts, or intermuscular scarring. The medical providers found no evidence of arterial, tendon, or neural injury. The Veteran has consistently exhibited minimal residual effects. As noted during a June 1971 examination, he was asymptomatic except for occasional tenderness if he should strike his forearm. There was no loss of motion, weakness, or other symptoms. There was normal motion in the fingers and good grip in the hand. The injury is not moderately severe. As noted by multiple VA examiners, the Veteran exhibited normal muscle strength. The August 2011 VA examiner found that there is tendon damage, but no tissue loss or muscle herniation. There was normal radial pulse as well as normal tricep reflex, bicep reflex, brachioradialis reflex, patellar reflex, and Achilles reflex. There was no abnormal sensory function. In determining there was minimal functional impairment, the March 2016 VA examiner noted that the Veteran recently reported lifting weights 3 times per week. Although there was pain 3 to 4 times per year when working out, bending the elbow, or carrying weights, there was no swelling and it was alleviated with discontinuing activity. Muscle group IX under DC 5209 refers to forearm muscles and the intrinsic muscles of the hand. The March 2016 VA examiner specifically noted that the Veteran's had injured this muscle group as a result of the gunshot wound. Muscle injuries under DC 5209 are rated based on limitation of motion with a minimum 10 percent rating. 38 C.F.R. § 4.56(d). In this instance, the Board finds that there is no limitation of motion of the Veteran's fingers that would warrant a compensable rating alone. Under DC 5228, addressing limitation of motion of the thumb, the Veteran must demonstrate a 1 to 2 inch gap between the thumb pad and the fingers. Under DC 5229, addressing limitation of motion of the index or long finger, the Veteran must demonstrate a gap of 1 inch or more between the fingertip and the proximal transverse crease of the palm or with extension limited by more than 30 degrees. Finally, under DC 5230, no compensable ratings are offered for limitation of motion of the ring and little fingers. However, as noted by the March 2016 VA examiner, the gunshot only grazed his left thumb before going through the forearm and lodging in his lateral elbow. As a result, there is no indication that the Veteran has any functional limitation in terms of his individual fingers and hand. Therefore, only the required minimum 10 percent rating under DC 5228 would be warranted. The Board concludes that the Veteran's compensable muscle group injuries are in the same anatomical region but do not technically act on the same joint. See 38 C.F.R. § 4.55. As a result, the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. In this case, both muscle group injuries would typically result in a 10 percent rating. After consideration of 38 C.F.R. § 4.55, the Board has determined that a 20 percent combined rating is appropriate for the Veteran's muscle group injuries. Scarring The Veteran has received noncompensable ratings for the scars on his left elbow, left forearm, and left thumb since September 1970. However, as a result of the September 2011 rating decision, he received a 10 percent rating for his scar on his left elbow. In his Notice of Disagreement, he stated that he was appealing the claims regarding his left thumb and left forearm. As a result, the scars of the left thumb and left forearm are on appeal. Both of the Veteran's scars are rated under DC 7804, which refers to scars that are unstable or painful. The Board has reviewed the Veteran's medical records and finds that this is not the appropriate Diagnostic Code under which to rate the service-connected scars, as both scars have not been unstable or painful. Rather, DC 7805 is appropriate as the scars have consistently been described as linear with one being deep and the other being superficial. After reviewing the evidence, the Board has determined that a compensable rating is not warranted for the left forearm and thumb scars. In this regard, the Board concludes that, for the entire appeal period, the Veteran's scars were asymptomatic, not of a size to warrant a compensable rating, and did not result in functional impairment or other disabling effects. The Veteran was afforded a VA examination for the scars on his left forearm and thumb in March 2016. The Veteran reported no problems with his scars. His first scar consisted of a linear scar on his left lateral thumb that was 5.5 x .2 cm (1.1 sq. cm.). It is non-tender with no keloid. There is no attachment to underlying structures, no effect on joint mobility, and no skin breakdown. Additionally, he had a second scar that consisted of a deep scar on his left dorsal forearm measuring 15.7 x .4 cm (6.28 sq. cm.). There is a small area in the proximal 2/3 of the scar that has attachment to underlying structures and an area of contraction of the scar with flexion of the elbow and maximal contraction of the forearm muscle groups. The scar appeared to be fairly superficial despite some attachment as there is no retraction of scar with extension of forearm, and the scar is easily moved around. The examiner found that there is no effect on supination, pronation, flexion or extension of the elbow. Similarly, there was no effect on wrist mobility. Under DC 7805, which provides that other scars (including linear scars), not otherwise rated under DCs 7800-7804 and including the effects of such scars otherwise rated under those codes, are also to be rated based on any disabling effects not provided for by DCs 7800-7804. 38 C.F.R. § 4.118, DC 7805. This includes, where applicable, diagnostic codes pertaining to limitation of function. However, the VA examinations of record do not reflect that the Veteran's scars result in any limitation of motion or loss of function. As the evidence throughout the appeal period does not show any disabling effects due to the scars, compensable ratings are not warranted under DC 7805. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's scars, but finds that a compensable rating is not assignable under any other diagnostic code. To that end, DC 7800 is not applicable, as it contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118. DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. As documented above, the Veteran's left forearm scar was deep, but of a size so small, 6.28 sq.cm., that it is not compensable. DC 7802 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater. In this case, the Veteran's left thumb scar is linear and superficial, but only covers an area of 1.1 sq. cm. Therefore, a compensable rating is not available under DC 7802. DC 7804 contemplates unstable or painful scars. Under this diagnostic code, scars that are unstable or painful are to be assigned a 10 percent rating if there are one or two such scars; a 20 percent rating is assigned if there are three or four such scars; and a 30 percent rating is assigned where there are five or more such scars. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. As noted previously, there is no evidence of painful or unstable scarring with regards to the scars on appeal. When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The additional functional loss caused by these factors is taken into account for his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). In this instance, the VA examinations explicitly considered functional loss due to pain. Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings he currently receives. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. ORDER A rating in excess of 10 percent for residuals of a gunshot wound to the left forearm, status post radius fracture, to include medial and lateral epicondylitis of the left elbow, to also include left elbow tendonitis, is denied. A 20 percent rating, but no more, for residuals of a gunshot wound to the left forearm involving muscle groups VIII and IX, is granted, subject to the laws and regulations governing the payment of monetary benefits. A compensable rating for a scar on the left thumb is denied. A compensable rating for a scar on the left forearm is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs