Citation Nr: 1807210 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 13-02 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable evaluation for service-connected status post fracture distal left radius, status post open reduction and internal fixation, with scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from October 2004 to September 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for status post fracture distal left radius, status post open reduction and internal fixation, with scar, evaluated as noncompensable. FINDING OF FACT The Veteran's service-connected status post fracture distal left radius, status post open reduction and internal fixation, with scar, is not shown to have been productive of elbow extension limited to 45 degrees, elbow flexion limited to 100 degrees, or supination limited to 30 degrees. CONCLUSION OF LAW The criteria for an initial compensable evaluation for service-connected status post fracture distal left radius, status post open reduction and internal fixation, with scar, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Codes 5206, 5207, 5208, 5213 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to an initial compensable evaluation for his service-connected status post fracture distal left radius, status post open reduction and internal fixation, with scar. He argues that he has very limited movement in his left wrist and forearm, and that on "some to most" mornings he has "0" (no) movement, numbness, and tingling in his left arm. See Veteran's appeal (VA Form 9), received in January 2013. Additional evidence has been received following the December 2012 statement of the case, that it is not accompanied by a waiver of RO review. However, the Board has determined that this evidence, which pertains to treatment for psychiatric symptoms only, is not "pertinent" as defined at 38 C.F.R. § 20.1304 (c) (2017). Accordingly, a remand for RO consideration is not required. With regard to the history of the disability in issue, the Veteran's service treatment records show that in October 2009, the Veteran sustained a displaced fracture of the distal radius during an accident operating a ATV (all-terrain vehicle). That same month, he underwent an open reduction, internal fixation (ORIF) with plating. This surgery was described in an October 2009 operative report as "closed reduction and percutaneous pinning of left distal radial ulnar joint under fluoroscopy." The postoperative diagnosis was Galeazzi fracture-dislocation, left distal radius and ulna dislocation. The Veteran's separation examination report shows that he noted a history of a broken left arm treated with surgery in October 2009, and that he has a plate and six screws in his left arm. The report notes a history of ORIF for left wrist fracture. See 38 C.F.R. § 4.1 (2017). 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 (2014); 38 C.F.R. § Part 4 (2017). 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 the veteran's favor. 38 U.S.C. § 5107(b). In June 2012, the RO granted service connection for status post fracture distal left radius, status post open reduction and internal fixation, with scar, evaluated as noncompensable, with an effective date of October 20, 2010 for service connection. The Veteran has appealed the issue of entitlement to an initial compensable evaluation. The Veteran is appealing the original assignment of a disability evaluation following an award 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). The RO has evaluated the disability in issue as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5207. Under DC 5207, a 10 percent rating is warranted for: "Forearm, limitation of extension" where elbow extension of the major or minor extremity is limited to 45 degrees. In addition, the following diagnostic codes are also relevant to the claim: Under 38 C.F.R. § 4.71a, DC 5206, a 10 percent rating is warranted for: "Forearm, limitation of flexion" where elbow flexion of the major or minor extremity is limited to 100 degrees. Under 38 C.F.R. § 4.71a, DC 5208, a 20 percent rating is warranted where elbow flexion of the major or minor extremity is limited to 100 degrees, and elbow extension of the major or minor extremity is limited to 45 degrees. Under 38 C.F.R. § 4.71a, DC 5213, limitation of supination to 30 degrees or less of the major or minor arm is rated as 10 percent disabling. The normal range of motion for the elbow is flexion to 145 degrees and extension to 0 degrees. Normal pronation is from zero to 80 degrees, and normal supination is from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the 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 5261 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). A VA elbow and forearm disability benefits questionnaire (DBQ), dated in May 2012, shows that on examination, the left elbow had extension to 0 degrees, and flexion to "145 degrees or greater." The examiner indicated that there was no impairment of supination or pronation. There was no objective evidence of pain on motion. The Board finds that an initial compensable evaluation is not warranted. The May 2012 VA DBQ findings as to the ranges of left elbow motion do not show that the Veteran's left elbow has a limitation of flexion to 100 degrees, a limitation of extension to 45 degrees, or supination to 30 degrees or less. Accordingly, the criteria for an initial compensable evaluation under 38 C.F.R. § 4.71a, DC's 5206, 5207, 5208, and 5213 have not been met. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97. The only relevant medical evidence dated during the time period in issue is the May 2012 VA DBQ, which shows that the Veteran complained of flare-ups manifested by a lack of range of motion. He stated that he used ice for relief of his symptoms. The Veteran was noted to be left-handed. The examiner noted that there was no functional loss, or functional impairment, of the elbow or forearm. Strength was 5/5 for left elbow flexion and extension. There was no ankylosis. There was no flail joint, joint fracture, or impairment of supination or pronation. Following repetitive use testing, there was no additional loss of range of motion in the elbow or forearm. His ability to work was impacted to the extent that he has discomfort at times when his symptoms are exacerbated. An associated X-ray report notes a metallic plate and six screws transfix the fracture of the distal radius, that the fracture is well-healed, and that "position is anatomic." The impression was "no acute disease." The relevant diagnosis in the DBQ was fractured radius bone, left arm. When the ranges of motion in the left upper extremity are considered together with the evidence showing functional loss -- to include the findings (or lack thereof) pertaining to neurological deficits, muscle strength, and the lack of evidence of muscle wasting -- the Board finds that there is insufficient probative evidence of objective pain on motion, or any other functional loss, to warrant an initial compensable evaluation. Accordingly, the claim must be denied. The service-connected disability in issue includes a scar. However, the criteria for an initial compensable evaluation for a scar have not been met. The May 2012 VA DBQ shows that the examiner indicated that the Veteran's scar is not painful and/or unstable, nor is there a total area of all related scars greater than 39 square cm (6 square inches). There is no evidence of record indicating that the Veteran's left upper extremity scar has been productive of deep and nonlinear scars covering an area or areas exceeding 6 square inches (39 sq. cm), superficial and nonlinear scars covering an area or areas of at least 144 square inches (929 sq. cm.), or one or two scars that are unstable or painful. There is no evidence to show that his scar has caused any disabling effects not considered under 38 C.F.R. § 4.118, Diagnostic Codes 7800 - 7804 (i.e., scar(s) not of the head, face or neck, that are superficial, deep, nonlinear, unstable and/or painful). DC 7805. The Board therefore finds that an initial compensable evaluation is not warranted. 38 C.F.R. § 4.118, DCs 7801-7805. The Board has considered the Veteran's statements that he should be entitled to an initial compensable evaluation. 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). A lay person is competent to testify only as to observable symptoms. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an initial compensable evaluation. 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 disability in issue is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The VA examination also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. In deciding the Veteran's claim, the Board has considered the determinations in Fenderson, and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to a compensable evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the time the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the claimed disability such that an initial compensable evaluation is warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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, except as discussed below. The Veteran has been afforded an examination. In this regard, the Board notes that in an informal hearing presentation, dated in December 2017, the Veteran's representative stated, "If the Board is unable to grant the increased evaluation for distal left radius status post open reduction and internal fixation with scar, we request the Board to remand this appeal." However, there was no specific allegation that the disability in issue had worsened since his most recent VA examination in May 2012; the representative only provided boilerplate language concerning caselaw involving situations where a veteran alleges a worsening of the disability at issue. Nor does the record otherwise establish a worsening of the disorder since the last examination. Accordingly, a remand for another examination is not warranted. See generally Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). 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, except as already discussed with respect to a new examination. Based on the foregoing, the Board finds that 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 status post fracture distal left radius, status post open reduction and internal fixation, with scar, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs