Citation Nr: 20030144 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 20-11 090 DATE: April 29, 2020 ORDER Entitlement to a compensable rating for scars is denied. Entitlement to a rating in excess of 20 percent for left ulnar neuropathy is denied. Entitlement to an effective date prior to May 10, 2018, for the grant of a 20 percent rating for left ulnar neuropathy is denied. Entitlement an effective date prior to May 10, 2018, for the grant of a 30 percent rating for residuals of a shell fragment wound, left triceps and deltoid muscle (non-dominant) is denied. REMANDED Service connection for right knee osteoarthritis is remanded. Service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. Throughout the relevant period, the preponderance of the evidence indicates that the Veteran’s scars were not painful, unstable, or measured 929 square centimeters or more. 2. Throughout the relevant period, the preponderance of the evidence reflects the Veteran’s left ulnar neuropathy manifested in moderate symptoms. 3. Prior to May 10, 2018, the preponderance of the evidence weighs against a finding that it is factually ascertainable the Veteran’s left ulnar neuropathy was manifested by severe symptoms. 4. Prior to May 10, 2018, the preponderance of the evidence weighs against a finding that it is factually ascertainable the Veteran’s residuals of a shell fragment wound, left triceps and deltoid muscle was manifested by severe symptoms. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for scars have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. 2. The criteria for a rating in excess of 20 percent for left ulnar neuropathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8516. 3. Prior to May 10, 2018, the criteria for a 20 percent rating for left ulnar neuropathy have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400(o), 4.124a, Diagnostic Code 8516. 4. Prior to May 10, 2018, the criteria for a 30 percent for residuals of a shell fragment wound, left triceps and deltoid muscle have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400(o), 4.73, Diagnostic Code 5306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Increased Rating Claims Legal Criteria Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating 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 military 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Factual Background and Analysis Historically, the Veteran was hit in the left arm with shrapnel in 1967, resulting in damage to the left triceps and ulnar nerve. He had half of his triceps removed and underwent two subsequent surgeries to repair his ulnar nerve. As a result, he has two scars on his left upper extremity. 1. Entitlement to a compensable rating for scars, shell fragment wound, left deltoid and triceps The Veteran’s service-connected scars are rated as noncompensable; he contends a compensable rating is warranted. The Veteran’s scars are rated pursuant to Diagnostic Code 7802, which pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. In order to receive a compensable rating under Diagnostic Code 7802, a scar or scars must cover a minimum of 144 square inches (929 square centimeters) or greater. See id. At a November 2018 VA examination, the examiner noted the Veteran had two scars on his left upper extremity. One scar was located on his ulnar side from axilla down and measured 13.5 cm. in length by 1 cm. wide. The second scar was located in the triceps area of the back of the arm and measured 17 cm. in length by 3.2 cm. wide. The Veteran denied that his scars were painful; examination revealed they were superficial and stable. Based on the foregoing, the Board finds a compensable rating for the Veteran’s scars is not warranted under Diagnostic Code 7802, as his scars do not cover a minimum of 929 square centimeters. Rather, they cover less than 75 square centimeters. The Board has considered other applicable diagnostic codes and finds they are not for consideration. Diagnostic Code 7800 pertains to burn scars or disfigurement of the head, face, and neck, and is not applicable in this case given the location of the Veteran’s scars. See 38 C.F.R. § 4.118. Diagnostic Code 7801 is also inapplicable as a compensable rating under this code requires underlying soft tissue damage and there is no probative evidence of this damage. Diagnostic Code 7803 has been removed from the rating criteria. Diagnostic Code 7804 pertains to scars which are unstable and painful; the Veteran has denied pain and the objective evidence does not demonstrate instability. Diagnostic Code 7805 instructs raters to evaluate any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 under the appropriate diagnostic code; given that the Veteran has denied any functional impairment due to his scars, this code is not applicable. The Board has considered the benefit of the doubt doctrine; however, as the evidence weighs against a compensable disability rating, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to a rating in excess of 20 percent for left ulnar neuropathy The Veteran’s is claiming his left ulnar neuropathy is worse than the assigned 20 percent rating reflects. Notably, the Veteran’s left arm is his non-dominant (minor) arm. Diagnostic Code 8516 pertains to paralysis of the ulnar nerve. 38 C.F.R. § 4.124a. Under this diagnostic code, a 10 percent rating is warranted for mild incomplete paralysis of the minor arm, a 20 percent rating is warranted for moderate incomplete paralysis of the minor arm, and a 30 percent rating is warranted for severe incomplete paralysis of the minor arm. The maximum 50 percent rating is warranted when there is evidence of complete paralysis, the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. As it relates to peripheral nerves, words such as “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather than applying a mechanical formula, VA must evaluate all the evidence in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At a July 2017 VA primary care appointment for knee pain, a review of systems reflects the Veteran denied numbness, tingling, and weakness of the extremities. In December 2017, February 2018, August 2018, and September 2018, neurological examinations revealed no gross sensory or motor deficits. In January, February, and August 2018, muscle strength in the upper extremities was 5/5 bilaterally. At an October 2018 VA peripheral nerves examination, the Veteran stated that following his in-service injury he experienced numbness and tingling but that it was not much of an issue now and that it came and went. He stated he tried to work out and used 120-pound weights for chest presses. The Veteran denied pain in his left upper extremity and reported mild paresthesias and/or dysesthesias and mild numbness. Muscle strength testing was normal in the left upper extremity aside from grip which demonstrated active movement against some resistance; reflexes in the left upper extremity were hypoactive. Sensation to light touch was normal in the left shoulder and forearm and decreased in the left hand/fingers. The Veteran found the ulnar nerve was manifested by moderate incomplete paralysis. At a July 2019 VA primary care appointment, the Veteran denied muscle pain or weakness and also denied neurological symptoms such as numbness and paresthesias. He had full range of motion and full strength in his bilateral upper extremities. Light touch sensation neurological testing was grossly intact in the upper extremities. An October 2019 review of systems reflects the Veteran denied weakness, numbness, and paresthesias. On examination, he had full strength in his upper extremities. Following a review of the evidence of record, the Board finds the most probative evidence weighs against a finding that the Veteran’s left ulnar neuropathy has been manifested by severe symptoms; therefore, the next higher 30 percent rating is not warranted. Notably, several VA treatment records reflect the Veteran denied neurological symptoms relating to his left upper extremity; moreover, objective testing consistently revealed full strength and sensation. The Veteran has not claimed, and the preponderance of the evidence does not reflect that his left upper neuropathy causes any functional impairment. In fact, at his VA examination, the Veteran reported his ulnar nerve did not bother him; he reported numbness and tingling following the initial injury and stated that while those symptoms still came and went, they were not much of an issue now. VA treatment records do not demonstrate that the Veteran has complained of or sought treatment for his left ulnar neuropathy throughout the appeal period, and he has been independent in his activities of daily living. Moreover, the Veteran has not submitted any lay statements regarding any functional impairment due to this disability. Based on the foregoing, the Board finds a rating in excess of 20 percent for left ulnar neuropathy is not warranted. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence weighs against a finding that a higher rating is warranted, and therefore, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. Effective Date Claims Legal Criteria Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If, however, it is “factually ascertainable” that an increase in disability had occurred within the one year immediately preceding the date of receipt of the claim, then the Veteran can receive this earlier effective date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Factual Background and Analysis On May 10, 2018, VA received the Veteran’s intent to file a claim and in September 2018, VA received the Veteran’s formal claim for an increased rating for his left ulnar neuropathy and residuals of a shell fragment wound, left triceps and deltoid muscle. 3. Entitlement to an effective date prior to May 10, 2018, for the grant of the 20 percent rating for left ulnar neuropathy The Veteran is claiming an effective date prior to May 10, 2018, is warranted for the grant of a 20 percent disabling rating for left ulnar neuropathy. Prior to May 10, 2018, the most probative evidence of record does not demonstrate it is factually ascertainable that the Veteran’s left ulnar was manifested by moderate symptoms. Significantly, the Veteran has not submitted any lay statements regarding the functional impairment due to his left ulnar neuropathy. Moreover, during the applicable period, he did not seek medical treatment for this condition. At VA appointments for conditions unrelated to his left ulnar neuropathy, the Veteran denied numbness, tingling, and weakness of the extremities; neurological examinations revealed no gross sensory or motor defects; and muscle strength testing was consistently 5/5. Based on the foregoing, the Board finds the preponderance of the evidence weighs against a finding that it is factually ascertainable that the Veteran’s left ulnar neuropathy was manifested by moderate symptoms prior to May 10, 2018. Thus, an effective date prior to May 10, 2018, for the grant of a 20 percent rating is not warranted. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence weighs against the claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. 4. Entitlement an effective date prior to May 10, 2018, for the grant of the 30 percent rating for residuals of a shell fragment wound, left triceps and deltoid muscle The Veteran is claiming an effective date prior to May 10, 2018, is warranted for residuals of a shell fragment wound, left triceps and deltoid muscle. The Veteran’s residuals of a shell fragment wound, left triceps and deltoid muscle, is rated as 20 percent disabling prior to May 10, 2018, and as 30 percent disabling thereafter. The Veteran’s left arm is his non-dominant arm. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. 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. Diagnostic Code 5306 pertains to Muscle Group VI, which involves the extensor muscles of the elbow: triceps and anconeus. 38 C.F.R. § 4.73. Under Diagnostic Code 5306, for a nondominant arm, a slight disability warrants a noncompensable rating, a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 20 percent rating, and a severe disability warrants a 30 percent rating, the highest rating available under the diagnostic code. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c). VA regulation classifies disabilities resulting from muscle injuries as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d). The type of injury associated with a moderately severe muscle disability shows indications on palpitation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with the sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe muscle disability is worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include muscles that swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4). Prior to May 10, 2018, the most probative evidence of record does not demonstrate it is factually ascertainable that the Veteran’s residuals of a shell fragment wound, left triceps and deltoid muscle was manifested by severe symptoms, such that the next higher rating would be warranted. Notably, the Veteran has not submitted any lay statements regarding the functional impairment due to his residuals of a shell fragment wound, left triceps and deltoid muscle. Moreover, during the applicable period, he has not sought medical treatment for this condition. At VA appointments for conditions unrelated to his residuals of a shell fragment wound, left triceps and deltoid muscle, the Veteran denied numbness, tingling, and weakness of the extremities; neurological examinations revealed no gross sensory or motor defects; and muscle strength testing was consistently 5/5. Based on the foregoing, the Board finds the preponderance of the evidence weighs against a finding that it is factually ascertainable that the Veteran’s residuals of a shell fragment wound, left triceps and deltoid muscle was manifested by severe symptoms prior to May 10, 2018. There is no probative evidence that tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function and there is no objective evidence that muscle swell and harden abnormally in contraction. Further, the preponderance of the evidence weighs against a finding that the Veteran’s condition has impacted his ability to keep up with work requirements. Thus, an effective date prior to May 10, 2018, for the grant of a 30 percent rating for residuals of a shell fragment wound, left triceps and deltoid muscle is not warranted. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence weighs against the claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. REASONS FOR REMAND 1. Service connection for right knee osteoarthritis is remanded. The Veteran is claiming service connection for right knee arthritis. Following a November 2018 VA examination, the examiner provided a negative opinion reasoning, in part, that the Veteran was not seen for any right knee complaints until 2010. However, VA treatment records reflect the Veteran was seen in 2001 for complaints of knee pain and that degenerative changes were found bilaterally. Given that that this opinion is based, in part, on an inaccurate factual premise, the Board finds it has little probative value and that a new opinion is required. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an incomplete or inaccurate factual premise). 2. Service connection for COPD is remanded. The Veteran is claiming service connection for COPD, to include as due to exposure to herbicide agents. The Veteran’s service personnel records reflect he had verified service in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicide agents, such as Agent Orange, during that time. While COPD is not on VA’s list of diseases presumptively associated with exposure to herbicide agents, other lung diseases, such as lung cancer, are on that list. The Board notes that in cases where service connection on a presumptive basis is not warranted, a claimant is not precluded from establishing service connection with actual proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board finds it cannot resolve the question regarding whether service connection is warranted without a medical opinion; accordingly, a remand is warranted to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran’s right knee disability from, if possible, the medical professional who provided the November 2018 opinion. An examination is not required unless the medical professional designated to provide the opinion finds one is necessary. The claims file must be reviewed in its entirety and the medical professional must consider all medical and lay evidence of record, to include a May 2001 VA treatment record wherein the Veteran complained of bilateral knee pain and subsequent radiology reports reflect osteoarthritis. Following a complete review of the evidence of record and with consideration of the Veteran’s lay statements in the record, assuming they are credible for the limited purpose of the opinion, the medical professional is requested to provide the following opinion: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s right knee arthritis began during or within one year of service or is etiologically related to an event or episode during his active duty service. Why or why not? A complete rationale for this opinion is required. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 2. Obtain a medical opinion regarding the etiology of the Veteran’s COPD. The medical professional should obtain a history regarding the Veteran’s symptoms and treatment using the Acceptable Clinical Evidence (ACE) process which eliminates the need for an in-person examination. The Veteran’s claims file must be reviewed in its entirety. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, the medical professional is requested to provide the following opinion: (Continued on the next page)   Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s COPD began during or is etiologically related to his active duty service, to include as due to exposure to herbicide agents, such as Agent Orange. Why or why not? A complete rationale for this opinion is required. Citation to accepted medical principles and literature would be of great assistance ot the Board. The medical professional is informed an opinion based solely on the fact that COPD is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jessica L. O'Connell 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.