Citation Nr: 18144647 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-30 168 DATE: October 25, 2018 ORDER A rating in excess of 20 percent for residuals of a right clavicle fracture is denied. An initial rating of 10 percent, and no higher, for scars of the right shoulder and bilateral elbows, is granted. REMANDED Entitlement to service connection for right hip bursitis is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease (DJD) of the right acromioclavicular joint is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of a right clavicle fracture are not manifested by ankylosis, flail shoulder, false flail joint, or other impairment of the humerus; or, by malunion or nonunion of the humerus. 2. Prior to March 14, 2014, the Veteran’s post-surgical scars were superficial and not painful, unstable, at least 144 square inches, and did not cause any disabling effects. 3. Beginning March 14, 2014, one or two of the Veteran’s post-surgical scars were painful, but not otherwise shown to be unstable, at least 144 square inches, or cause any disabling effects. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a right clavicle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5203. 2. From March 14, 2014, and not earlier, the criteria for an initial 10 percent rating for scars of the right shoulder and bilateral elbows have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.118, Diagnostic Codes (DCs) 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to August 1981, with additional Reserves and National Guard service. He served during a period of war and during peacetime. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2016 rating decision, the RO retroactively granted a 20 percent rating for the service-connected DJD of the right acromioclavicular joint, effective May 1, 2009. In August 2017, the RO granted an increase for the scars of the right shoulder and bilateral elbows to 10 percent, effective September 13, 2016. As these ratings did not constitute a full grant of the benefits sought, the claims remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2017, the Veteran, through his representative, submitted a Social Security Administration (SSA) disability benefits award letter after the most recent supplemental statement of the case. As he was not awarded for any of the service-connected disabilities on appeal, they are not relevant, and a remand for initial Agency of Original Jurisdiction (AOJ) consideration is not necessary. See 38 C.F.R. 20.1304. REFERRED The issues of a claim to reopen for entitlement to service connection for a right knee condition; a claim to reopen for entitlement to service connection for right elbow pain; service connection for tinnitus; and a higher rating for the service-connected bilateral hearing loss disability were raised in a May 2013 VA Form 21-4138, Statement in Support of Claim. They are referred to the AOJ for adjudication. Increased Rating Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155 (2012). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that multiple distinct degrees of disability might be experienced which result in different compensation levels from the time the increased rating claim was filed until a final decision is made. Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Entitlement to a rating in excess of 20 percent for residuals of a right clavicle fracture. The Veteran seeks a higher rating for residuals of a right clavicle fracture, which is currently rated at 20 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5203. The appeal period before the Board begins on March 19, 2011, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. The Veteran’s right arm is considered the major (dominant) upper extremity. See May 2013 VA contract examination. Diagnostic Code 5203 provides that in cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved. Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent evaluation. 38 C.F.R. § 4.71a. This is the maximum schedular rating available. VA treatment records show a history of chronic right shoulder pain and limited motion, but no diagnoses of ankylosis or impairment of the humerus. In May 2013, the Veteran’s wife submitted a statement reporting that the Veteran continued to have residuals from the injuries sustained from the motor vehicle accident. Specifically, his right collar bone is disfigured, he cannot complete yard work, and sleeps in a recliner. In May 2013, the Veteran underwent a VA contract examination. He reported that his right hand was the dominant hand. The examiner indicated there was no ankylosis. No guarding was present. There was no history of recurrent dislocation of the scapulohumeral joint. The diagnoses were DJD, right acromioclavicular joint associated with fracture, right clavicle; and right shoulder arthroscopies with scars. At a February 2016 VA examination, no ankylosis was found. There was no history of recurrent dislocation of the scapulohumeral joint. The examiner noted the Veteran did not have flail shoulder, false flail shoulder or fibrous union of the humerus. He also did not have malunion of the humerus with moderate or marked deformity. On his notice of disagreement and substantive appeal, the Veteran asserted that the residual lump of his right clavicle fracture prevented him from carrying a backpack or participating in recreational activities. After a review of the evidence of record, the Board finds that a higher rating is not warranted under DC 5203. As stated above, the Veteran is in receipt of the maximum rating possible under that Code. The Board has considered whether a higher rating is warranted under any of the other diagnostic codes for evaluating shoulder and arm disabilities, but finds none applicable. DC 5200 does not apply, as there is no evidence of ankylosis. DC 5202 also does not apply as there is no evidence of flail shoulder, false flail joint, or any other impairment of the humerus including nonunion or malunion of the humerus. As such, a higher rating is not warranted under these diagnostic codes. The Board notes that the right shoulder acromioclavicular joint DJD manifests with limited range of motion and functional impairment. These symptoms are contemplated under DCs 5010-5201 and the Veteran is already rated separately for such symptoms under that hyphenated diagnostic code. The Board has remanded the issue of entitlement to a higher rating for the right shoulder acromioclavicular joint DJD for further development. A schedular rating higher than 20 percent under DC 5203 is not warranted. See Hart, supra. In the Appellate Brief submitted in August 2018, the Veteran’s representative requested consideration under 38. C.F.R. 3.321 for referral for an extraschedular rating for his right shoulder residuals. The Board will defer consideration of this matter at this time. It will be more appropriate to discuss this contention following completion of the remand directives on the issue of entitlement to a higher rating right shoulder acromioclavicular joint DJD. 2. Entitlement to an initial compensable rating for scars of the right shoulder and bilateral elbows, prior to September 13, 2016, and in excess of 10 percent thereafter. The criteria used to evaluate disabilities involving the skin were revised, effective August 13, 2018. See 83 Fed. Reg. 38,663 (Aug. 7, 2018) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). The revisions are only effective for claims pending as of August 13, 2018. The Veteran’s claim for a higher rating was pending as of August 13, 2018. As such, the Board will examine both versions and apply the one most favorable to the Veteran. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Veteran’s scars of the right shoulder and bilateral elbows were initially rated as noncompensable pursuant to 38 C.F.R. § 4.118, DC 7805. DC 7805 instructs that any disabling effect(s) not considered in a rating provided under DCs 7800-04 should be rated under an appropriate DC. While DC 7805 was revised, the revisions do not affect the outcome of this case. The revisions did not affect DC 7804. DC 7804 provides ratings for scar(s) that are unstable or painful. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings are available for greater numbers of scars with such symptomology. Note (1) following DC 7804 indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that 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. Note (3) indicates that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. After a review of the record, the Board finds that a 10 percent rating is warranted under DC 7804, but only beginning March 14, 2014. At the May 2013 VA contract examination, the examiner identified a total of 5 scars: 2 on the anterior right shoulder that both measured 2 x 0.25 cm; 1 scar on the posterior right shoulder that measured 2 x 0.25 cm; 1 scar on the left medial elbow that measured 11 x 0.25 cm; and 1 scar on the right medial elbow that measured 11 x 0.25 cm. The scars were not painful and/or unstable and the total area of all related scars were not greater than 39 square cm (6 square inches). As such, the RO assigned an initial noncompensable rating under DC 7805. On his March 14, 2014 notice of disagreement, the Veteran asserted that the scar on his left arm is painful and that the scars on the right shoulder seemed to “radiate the temperature deeper into [his] body and [cause] deeper pain.” At the February 2016 VA examination, the examiner noted that the Veteran had scars on the right shoulder top (1.5 x 0.1cm, 0.5 x 0.4cm, and 1.7 x 0.1cm); anterior right shoulder (1.5 x 0.1cm, 1.9 x 0.1cm, and 2 x 0.1cm); posterior right shoulder (0.8 x 0.1cm and 1 x 0.1cm); right postero-lateral elbow (4 x 0.2 cm and 2.7 x 0.2 cm); right medial elbow (9.5 x 0.3cm); right flexor forearm (8 x 0.1cm); and right distal upper flexor arm (0.6 x 0.2 cm). The examiner noted that the scars were not painful and/or unstable. On his substantive appeal, the Veteran asserted that two of his scars are painful because of its location, movement, and scar tissue. The Veteran was afforded another VA examination on September 13, 2016. The examiner found that he exhibited pain, moderate tenderness, and flinched when the scar on top of his right shoulder was palpated. The examiner found that it measured 1.5 x 0.1 cm. There were no other scars that elicited grimacing, flinching, or indication of pain on palpation for the remaining scars. They did not measure greater than 39 square cms. As such, the RO awarded an initial 10 percent rating in the August 2017 rating decision. Based on the evidence above, the Board finds that a 10 percent evaluation is warranted for the Veteran’s scars, but only as of March 14, 2014, when he first reported that at least one or two of his scars was painful. The Veteran is competent to relate the readily observable symptoms, such as a painful scar. While the February 2016 VA examination report showed the Veteran did not report any scars to be painful, the Board finds him credible. Thus, resolving benefit of the doubt in his favor, the Board finds that a 10 percent rating for scars of the right shoulder and bilateral elbows, is warranted. Prior to March 14, 2014, the Veteran did not report any pain or tenderness related to his scars and such was not noted upon examination. The May 2013 VA contract examination report showed that the Veteran did not report pain or skin breakdown and the examiner did not find any on evaluation. There are no other treatment records or lay statements from the Veteran that showed pain or tenderness of any scar. An even higher rating of 20 percent is not warranted under DC 7804, as the Veteran does not have at least 3 or more scars which are painful or unstable. This included consideration of his lay statements. From March 14, 2014, the Veteran has reported at most, two scars that are painful. Furthermore, there is no evidence that any of his surgical scars are unstable. See 38 C.F.R. § 4.118, DC 7804. The VA contract examiner and examiners have not found any scars to be unstable. There are no other diagnostic codes which could potentially afford the Veteran a higher rating. Both the former and revised version of DC 7800 is inapplicable in this case because that Code pertains to scars of the head, face, or neck. DC 7801 relates to scars that are deep and nonlinear (pre-2018 version) or are associated with underlying soft tissue damage (post-2018 version). DC 7802 relates to scars that are superficial and nonlinear (pre- 2018 version) or are not associated with underlying soft tissue damage (post-2018 version). The Board notes that neither the former or revised version of DCs 7801 or 7802 would result in a compensable rating in this case as the Veteran’s scar is not deep, nonlinear, or associated with underlying soft tissue damage. In sum, an initial 10 percent rating, and no higher, for the Veteran’s scars of the right shoulder and bilateral elbows, is granted from March 14, 2014. See Hart, 21 Vet. App. at 509-10. There are no additional expressly or reasonably raised issues presented on the record. REASONS FOR REMAND While delay is regrettable, further development is necessary. 1. Entitlement to service connection for right hip bursitis is remanded. The Veteran seeks service connection for right hip bursitis. Specifically, he contends in a February 1975 motor vehicle accident that occurred during service, he was thrown into a machine gun mount that injured his right-side and caused some of his other service-connected disabilities, including his right hip condition. See March 2014 notice of disagreement. In May 2013, his wife, R.C.G., submitted a statement in support of his claim, asserting that the Veteran’s right hip was also injured in the motor vehicle accident. The Veteran was afforded a VA examination in February 2016. The examiner opined that the right hip bursitis was less likely than not caused by service. The rationale provided does not reflect adequate consideration of the lay contentions by R.C.G. or the Veteran. Therefore, another VA opinion is needed.   2. Entitlement to a rating in excess of 20 percent for DJD of the right acromioclavicular joint. The Veteran seeks a higher rating for his DJD of the right acromioclavicular joint. The prior VA contract and VA examinations in May 2013 and February 2016 do not fully comport with the last sentence of 38 C.F.R. § 4.59, which requires testing of the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In addition, the Veteran has reported flare-ups of his right shoulder condition at the February 2016 VA examination. However, the examiner did not indicate the additional loss of function during flare-ups, in terms of range of motion. The February 2016 examiner noted the examination was not conducted during a flare-up, but was also unable to provide an opinion on how pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. In situations where an examination is not conducted during a flare or after repeated use over time, a VA examiner should estimate functional loss based on the Veteran’s descriptions of his additional loss of function during flare-ups, gleaned from his medical records, or discerned other sources available to the examiner. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced. Id. The contemporaneous evidence of record also does not allow the Board to make a fully informed decision in that regard. Accordingly, on remand, a retrospective medical opinion should be obtained. Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The matters are REMANDED for the following action: 1. Return the file to the February 2016 VA examiner for an addendum opinion. The claims file and a copy of this Remand must be reviewed. If that examiner is unavailable, the opinion should be provided by an appropriate clinician. An in-person examination is left to the discretion of the examiner. The examiner is asked to address: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right hip bursitis had onset in service or is related to an in-service injury, event, or disease, to include the February 1975 motor vehicle accident. The examiner’s opinion and rationale must reflect consideration of the Veteran’s credible contention that he was thrown into the machine gun mount and of R.C.G.’s contention that his right hip was injured during the motor vehicle accident. A fully-explained rationale must be provided for each opinion. If the examiner is unable to provide a rationale for any opinion, then he or she must indicate why. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected DJD of the right acromioclavicular joint. The examiner must review the claims file and a copy of this Remand. a) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. b) The joint involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The opposite joint (left shoulder) should also be tested for comparison purposes if that joint has no demonstrated abnormalities. c) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or on repeated use overtime. The examiner should assess such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. d) The examiner is also asked to express a retrospective opinion concerning functional loss for the period from March 2011 to the present. In providing this opinion, the examiner should also be aware that the Veteran did report experiencing flare-ups during the 2016 VA examination. The examiner is asked to retrospectively assess such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel