Citation Nr: 20004029 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-17 449 DATE: January 16, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for status post arthroscopic surgery, right shoulder is denied. Entitlement to a disability rating in excess of 0 percent for surgical scar, right wrist is denied. Entitlement to a disability rating in excess of 0 percent for surgical scars, left knee is denied. Entitlement to a disability rating in excess of 0 percent for surgical scars, status post arthroscopic surgery, right shoulder is denied. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran had motion of the arm functionally limited to 25 degrees from the side. 2. The evidence of record shows the Veteran has a right dorsal wrist surgical scar that is linear, measures less than 939 square centimeters (6 square inches), is well healed, non-tender, stable, and is not disabling due to limitation of function. 3. The evidence of record shows the Veteran has two left knee surgical scars. One is linear, measure less than 939 square centimeters (6 square inches), is well healed, non-tender, stable, and is not disabling due to limitation of function. The other scar is faded and not clearly visible or apparent. 4. The evidence of record shows the Veteran has three right shoulder surgical scars, two linear and one circular, measure less than 939 square centimeters (6 square inches), are well healed, non-tender, stable, and are not disabling due to limitation of function. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for status post arthroscopic surgery, right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 2. The criteria for entitlement to a disability rating in excess of 0 percent for surgical scar, right wrist have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805. 3. The criteria for entitlement to a disability rating in excess of 0 percent for surgical scars, left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805. 4. The criteria for entitlement to a disability rating in excess of 0 percent for surgical scars, status post arthroscopic surgery, right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to February 2007. A February 2018 rating decision granted an increased rating of 20 percent for status post arthroscopic surgery, right shoulder effective February 23, 2007, the day after the Veteran separated from service. The same rating decision granted service connection for right wrist surgical scar secondary to service-connected status post nonunion of hamate bone surgery with pin placement, right shoulder surgical scars associated with status post arthroscopic surgery, and left knee surgical scars associated with patella femoral syndrome and assigned each a 0 percent disability rating. The record reflects that the Court recently vacated a Board decision with respect to a TDIU matter. That matter is still being processed by the Board, and the record shows that the representative recently requested more time in which to submit additional evidence or argument on that issue. The TDIU matter thus will be the subject of a later Board decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to a disability rating in excess of 20 percent for status post arthroscopic surgery, right shoulder The Veteran’s service-connected right shoulder disability is rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5201, limitation of motion to shoulder level (e.g., flexion to 90 degrees) in the major or minor extremity warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion to 45 degrees) in the minor extremity warrants a 20 percent rating and a 30 percent rating in the major extremity. Limitation of motion to 25 degrees from the side in the minor extremity warrants a 30 percent rating and a 40 percent rating in the major extremity. The Board notes that the Veteran’s dominant hand is the left hand. Under 38 C.F.R. § 4.71a, Diagnostic Code 5203, a 10 percent evaluation is warranted for nonunion of the clavicle or scapula, without loose movement or malunion of the clavicle or scapula. A 20 percent evaluation is warranted for dislocation of the clavicle or scapula or nonunion of the clavicle or scapula, with loose movement. Under 38 C.F.R. § 4.71a, Diagnostic Code 5202, (impairment of the humerus), a 20 percent evaluation is warranted for recurrent dislocations at the scapulohumeral joint, with frequent episodes and guarding of the arm movements of the minor arm; recurrent dislocations at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level; or malunion of the humerus with marked deformity of the minor arm or moderate deformity. A 40 percent evaluation is warranted for a fibrous union of the humerus. Nonunion of the humerus warrants a 50 percent evaluation for the minor arm. A loss of the humerus head warrants a 70 percent evaluation for the minor arm. For VA purposes, normal range of shoulder motion is: forward extension (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. A review of the Veteran’s VA treatment records reflects that the Veteran had little to no complaints of right shoulder issues during the appeal period. Other than a September 2014 x-ray showing minimal right shoulder arthritis and notations of a history of shoulder arthralgia, all other shoulder complaints are for pain in the left shoulder. A February 2018 VA shoulder examination reflects that the Veteran reported that in approximately 2014, his right shoulder has not bothered him since he stopped eating red meat. On examination, the Veteran had normal range of motion in his right shoulder. The Veteran denied flare-ups and functional loss or functional impairment. There was no objective evidence of pain on exam, pain with weight bearing, evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, or evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was 5/5 and there was no muscle atrophy, ankylosis, or shoulder instability. There was no clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint conditions suspected, and no conditions or impairments of the humerus. Based on the findings above, including the Veteran’s own statements, the Board finds that the record indicates that the symptoms associated with the Veteran’s service-connected right shoulder disability do not warrant a rating in excess of 20 percent. The evidence does not establish any additional functional limitation of the shoulder due to pain, weakness, fatigability or like symptoms. The Board has also considered the applicability of other potential diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the evidence of record does not reflect fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus; therefore, a higher rating under DC 5202 is not warranted. Additionally, there is no evidence of clavicle or scapula impairment, thus a rating under DC 5203 is not warranted. In sum, the Board finds that the criteria for a rating in excess of 20 percent for right shoulder disability have not been met, and there is no basis for staged ratings. See Fenderson v. West, 12 Vet. App. at 126-27 (1999). Therefore, the benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). 2. Entitlement to a disability rating in excess of 0 percent for surgical scar, right wrist The Veteran is service-connected for a right wrist surgical scar secondary to service-connected status post, nonunion of hamate bone surgery with pin placement, right wrist. The Veteran’s service-connected right wrist surgical scar is rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 7805. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. Diagnostic Code 7801 holds that scars (other than those involving the head, face, or neck) that were deep or that caused limited motion warranted the following ratings: 10 percent for an area or areas exceeding 6 square inches (39 sq. cm.) and 20 percent for area or areas exceeding 12 square inches (77 sq.cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, scars, other than on the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches or greater warrant a 10 percent disability rating. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. A 10 percent rating is warranted for one or two scars that are unstable or painful. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. Id. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note (3). A compensable evaluation under Diagnostic Code 7805 is not warranted unless the scars are considered disabling due to limitation of function. The February 2018 VA examiner described the Veteran’s right dorsal wrist scar as linear, measuring 3 cm long x 0.3 cm wide, well healed, and non-tender. There is no evidence that the scar is superficial, painful, unstable, or covers an area equal to or greater than 6 square inches. Additionally, there is no evidence the scar is disabling due to limitation of function. While the Veteran has a scar from surgical intervention, the evidence does not show any disabling effects, limitation of motion or loss of function, due to the scar itself. The size of the scar is not compensable. As such, the Board finds the preponderance of the evidence is against the Veteran’s claim for a compensable disability rating (in excess of 0 percent) for right dorsal wrist scar. Therefore, the benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). 3. Entitlement to a disability rating in excess of 0 percent for surgical scars, left knee The Veteran is service connected for a left knee surgical scar under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 7805. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. Diagnostic Code 7801 holds that scars (other than those involving the head, face, or neck) that were deep or that caused limited motion warranted the following ratings: 10 percent for an area or areas exceeding 6 square inches (39 sq. cm.) and 20 percent for area or areas exceeding 12 square inches (77 sq.cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, scars, other than on the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches or greater warrant a 10 percent disability rating. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. A 10 percent rating is warranted for one or two scars that are unstable or painful. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. Id. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note (3). A compensable evaluation under Diagnostic Code 7805 is not warranted unless the scars are considered disabling due to limitation of function. The February 2018 VA examiner noted the Veteran had two left knee arthroscopic circular scars that were non-tender and well healed. One scar was clearly visible measuring 0.7 cm long x 0.7 cm wide. The other scar, measuring 0.5 cm x 0.5 cm, was faded and not clearly visible or apparent. There was no objective evidence the scars were painful, unstable, had a total area equal to or greater than 39 square cm (6 square inches) or were located on the head, face or neck. There was also no evidence that the Veteran’s two circular scars are disabling due to limitation of function. While the Veteran has two scars from surgical intervention, the evidence does not show any disabling effects, limitation of motion or loss of function, due to the scars themselves. The size of the scars themselves, individually or combined, are not compensable. As such, the Board finds the preponderance of the evidence is against the Veteran's claim for a compensable disability rating (in excess of 0 percent) for surgical scars of the left knee. Therefore, the benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). 4. Entitlement to a disability rating in excess of 0 percent for surgical scars, right shoulder The Veteran is service connected for right shoulder surgical scars under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 7805. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. Diagnostic Code 7801 holds that scars (other than those involving the head, face, or neck) that were deep or that caused limited motion warranted the following ratings: 10 percent for an area or areas exceeding 6 square inches (39 sq. cm.) and 20 percent for area or areas exceeding 12 square inches (77 sq.cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, scars, other than on the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches or greater warrant a 10 percent disability rating. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. A 10 percent rating is warranted for one or two scars that are unstable or painful. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. Id. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note (3). A compensable evaluation under Diagnostic Code 7805 is not warranted unless the scars are considered disabling due to limitation of function. The February 2018 VA examiner noted the Veteran had three right shoulder arthroscopic scars that were non-tender and well healed. The largest scar measured 4 cm x 0.2 cm and was linear. The second scar measured 1.5 cm x 0.2 cm and was also linear. The third scar was circular and measured 1 cm x 1 cm. There was no objective evidence the scars were painful, unstable, had a total area equal to or greater than 39 square cm (6 square inches) or were located on the head, face or neck. There was also no evidence that the Veteran’s scars are disabling due to limitation of function. While the Veteran has three scars from surgical intervention, the evidence does not show any disabling effects, limitation of motion or loss of function, due to the scars themselves. The size of the scars themselves, individually or combined, are not compensable. As such, the Board finds the preponderance of the evidence is against the Veteran’s claim for a compensable disability rating (in excess of 0 percent) for surgical scars of the right shoulder. Therefore, the benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.