Citation Nr: 20039918 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-10 161 DATE: June 11, 2020 ORDER Entitlement to a rating of 20 percent prior to February 7, 2017, for muscle injury from laceration of the left forearm with involvement of Muscle Groups (MG) VIII and IX is granted. Entitlement to a rating in excess of 20 percent for muscle injury from laceration of the left forearm with involvement of MG VIII and IX is denied. FINDING OF FACT The disability most nearly approximates moderately severe muscle impairment for the entire period of the appeal. CONCLUSION OF LAW The criteria for a 20 percent rating for the entire period of the claim for muscle injury from laceration of the left forearm with involvement of MG VIII and IX have been met, but the criteria for a rating in excess of 20 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Code 5308, 5309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1954 to October 1958 and March 1959 to March 1963. In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the proceeding is of record. Increased Rating In December 1962, the Veteran received treatment for a “wound” and “avulsion” to the left forearm from a motor vehicle accident. The record notes that the area underwent a surgical scrub and received a dry sterile dressing. A June 2, 1969, VA examination record reveals the Veteran’s history of incomplete extension of the left thumb since a motor vehicle accident in 1961. The record reports that the left thumb lacked approximately 45 degrees of extension from scarring of the extensor tendon. The examiner diagnosed laceration of the left forearm with involvement of the extensors of the thumb, moderate disability. A June 3, 1969, VA examination record reveals the Veteran’s history of a laceration to the left forearm in December 1961, which resulted in hospitalization for approximately 30 days. The examiner noted that no records were available to reference for the amount of injury of soft tissue or other structures involved. The Veteran reported inability to flex the distal phalanx of the left thumb and sensitive scar since the injury. Examination revealed an irregular transversely placed scar on the volar aspect of the left forearm that was well healed. The scar was sensitive to deep pressure in the mid-portion where a small knot-like structure was felt. The record reports that there appeared to be mild damage to the underlying flexor muscle of the forearm. Examination of the thumb revealed the distal phalanx held in a mid-position between 90 and 180 degrees. The Veteran was able to flex the thumb to 90-degree position and return it to the 135 position. He was unable to extend the distal phalanx from the 135 degree to the 180-degree position. The Veteran made a fist in a “good fashion” and was able to oppose the thumb to all fingers. The metacarpophalangeal junction and the proximal interphalangeal junction of the left thumb presented no abnormality. The examiner diagnosed laceration wound scar, left forearm, healed; mild residual disability. In a June 1969 rating decision, VA granted a 10 percent rating under Diagnostic Code 5308 for laceration of the left forearm with involvement of the extensors of the thumb muscle group VIII. In June 2014, the Veteran submitted a claim for an increased rating, reporting that he had no use of the left thumb. A September 2012 VA treatment record notes that the Veteran had injury to the left proximal forearm that caused inability to extend the left thumb. The record reports that the Veteran had no active extension of the left thumb. A May 2014 VA treatment record notes that the Veteran had an extension deformity to the left thumb. A September 2014 VA examination record reports diagnosis of laceration of the left forearm, with involvement of the extensors for the thumb muscle group VIII. The record reports that the Veteran had a non-penetrating muscle injury, explaining that the Veteran had a lacerating injury to the medial aspect of the left forearm. The record reports that injury included skin, muscle, and tendon repair. The record adds that the Veteran had loss of extension at the MCP joint with associated loss of function and sensation and decreased grip strength. The Veteran was noted to be right-hand dominant. The examiner determined the Veteran had injury to muscle group VIII of the left side. There was minimal scar. There was no known fascial defect, and the muscle injury did not affect muscle substance of function. The Veteran did not have any cardinal signs or symptoms (noted as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement). Motor strength was noted to be 5/5, there was no atrophy, and functioning was not so impaired as to approximate amputation with prosthesis. An April 2015 VA treatment record reveals the Veteran’s history of left thumb pain and limited range of motion. Examination of the extremities revealed no swelling or significant limitation to range of motion except the left thumb and right shoulder. A March 2018 VA examination record notes the previous diagnosis of laceration of the left forearm with involvement of extensor of thumb muscle group VIII. The record reports that the Veteran had a non-penetrating muscle injury. The record reveals the Veteran’s history of inability to raise his thumb. He also reported that he could not use his thumb and could not button hs shirt. The examiner determined there was injury to muscle groups VII, VIII, and IX. The examiner reported that the Veteran had a linear scar on the left forearm. There was no known fascial defect or evidence of fascial defects, and there was no effect on muscle substance or function. There was no cardinal sign or symptom. Motor strength was 4/5 throughout the body. There was no atrophy, and functioning was not so impaired as to approximate amputation with prosthesis. The examiner reported that the injuries to muscle groups VII and IX were a progression of the service-connected laceration. An April 2019 VA examination record notes the previous diagnosis of laceration of the left forearm with involvement of extensor of thumb muscle group VIII. The record reveals the Veteran’s history of limited use of his left arm and left arm atrophy since the in-service surgery. He also reported limited grip, manual dexterity, numbness and tingling. The examiner determined that muscle group VIII was affected. The examiner reported that there was an entrance scar that was small or linear, indicating short track of missile through muscle tissue. The examiner also reported that there was some loss of deep fascia, some loss of muscle substance, soft flabby muscles in the wound area, and visible or measurable atrophy. The examiner further noted that there was loss of power of muscle group VIII, weakness of muscle group VIII, consistent impairment of coordination of muscle group VIII, and consistent uncertainty of movement of muscle group VIII. The examiner reported that there was no muscle atrophy, and functioning was not so impaired as to approximate amputation with prosthesis. A September 2019 VA treatment record reports that the Veteran had good grip strength. An October 2019 VA “hand” examination record reveals diagnoses of ankylosis of the left thumb interphalangeal joint, arthritis, and status-post laceration of the left forearm with involvement of the extensors of thumb muscle group VIII with progression to include muscle group IX. The record reveals the Veteran’s history of decreased grip strength, tingling feeling in the area of the scar, and occasional numbness to the left fourth and fifth fingers. He also reported occasional pain in the hand with use. He added that he is unable to make a proper fist. He reported inability to hold anything in the left hand without fear of dropping the item due to weakness and inability to make a proper fist. Range of motion testing revealed a gap of 3 centimeter between the pad of the thumb and fingers. There was a gap of 3 centimeter between the index finger and proximal transverse crease on maximal finger flexion and a gap of 2 centimeter between the long finger and the proximal transverse crease of the hand. The Veteran was unable to grip as effectively due to decreased range of motion. There was pain on motion and use of the hand. There was mild tenderness at the thenar eminence. There was not additional loss of motion after repetition. The examiner noted review of the Veteran’s history, current exam findings, and relevant evidence but was unable to determine how range of motion would be affected by weakness and fatigue without mere speculation after repeated use over time because range of motion would be dependent on the severity of symptoms at the time. The Veteran had atrophy of the left upper extremity. There was ankylosis of the thumb at 55 degrees of extension but no rotation or angulation of the gone. The examiner noted that there was no pain with passive range of motion testing or nonweight-bearing testing of the left hand. An October 2019 VA “muscle group injury” examination record reports that the Veteran had a non-penetrating muscle injury and injury to muscle group VIII and IX. There was ragged, depressed, and adherent scar indicating wide damage to muscle groups in the missile track. There was no fascial defect. There was some impairment of muscle tonus, some loss of muscle substance, and visible or measurable atrophy. There was also loss of power, weakness, and impairment of coordination that was consistent at a more severe level and consistent lowered threshold of fatigue. Strength was 3/5 in the left wrist extension (group VIII) and otherwise 4/5. The scar was not painful or unstable and did not measure greater than 39 square centimeter. The laceration to the left forearm is rated under Diagnostic Code 5308. Diagnostic Code 5308 pertains to Muscle Group VIII, the function of which consists of extension of the wrist, fingers, and thumb; abduction of the thumb. This diagnostic code provides a 0 percent rating for slight muscle injury, a 10 percent rating for a moderate muscle injury, a 20 percent rating for a moderately severe muscle injury, a 20 percent rating for a severe muscle injury of the non-dominant extremity. 38 C.F.R. § 4.73, Diagnostic Code 5308. Muscle group IX under DC 5209 refers to forearm muscles and the intrinsic muscles of the hand. 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). The factors to be considered in evaluating residuals of healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56. The regulation directs that the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement, and indicates that disabilities resulting from muscle injuries shall be classified slight, moderate, moderately severe, or severe. A muscle injury evaluation is not combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. 38 C.F.R. § 4.55(d). 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(e). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Resolving all doubt in favor of the Veteran, the Board finds a 20 percent rating is warranted throughout the period of the appeal based on the evidence of a progressive increase in impairment. A rating higher than 20 percent is not warranted, however. A 20 percent rating is the maximum rating authorized for ankylosis of the thumb or for injury to nondominant muscle groups VIII and IX. The Board finds these muscle groups affect the same joint so a higher rating is not warranted under 38 C.F.R. § 4.55(e) and separate ratings are not authorized under 38 C.F.R. § 4.55(f). The Board further finds a separate rating is not warranted for limitation of motion because it would result in pyramiding. Notably, the 20 percent rating contemplates functional impairment due to symptoms such as pain, weakness, and incoordination and associated limitation of motion so a separate rating is not available for limitation of motion under 38 C.F.R. § 4.71a. Finally, the Board notes that service connection is already in effect for the scar. The Board has considered whether a separate rating is warranted based on loss of use. Special monthly compensation (SMC) is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the loss of use of a hand. See 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a), 4.63. Loss of use of the hand will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with a suitable prosthetic appliance. 38 C.F.R. § 4.63. The determination is made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. Examples that constitute loss of use of a hand include complete ankylosis of two major joints of an extremity. 38 C.F.R. § 4.63. The record does not support a finding of loss of use of the left hand. Although the Veteran contends that he has loss of use of the thumb and diminished function in the left hand, clinical evaluation consistently reveals motion and some, albeit limited, grip strength and dexterity. The Board finds the Veteran’s predominant functioning is too significant to approximate loss of use, which is consistent with the VA examiners’ determinations that function was not so impaired as to approximate amputation with prosthesis. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.