Citation Nr: 21004675 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-39 230 DATE: January 27, 2021 ORDER A higher (compensable) rating for right hand fifth digit arthritis is denied. A 60 percent rating, but no higher, as of November 5, 2020, for post-operative right shoulder with degenerative arthritis is granted. A higher (compensable) rating for bilateral hearing loss is denied. A higher (compensable) rating prior to December 22, 2017, and higher than 10 percent thereafter for surgical scars of the right knee, chest, and right shoulder is denied. A 60 percent rating, but no higher, for coronary artery disease (CAD) as of July 9, 2016, is granted. FINDINGS OF FACT 1. Veteran is in receipt of the maximum schedular rating for limitation of motion of the right hand fifth finger. 2. As of November 5, 2020, the Veteran’s right shoulder showed severe, painful motion. 3. The probative evidence shows that the Veteran’s bilateral hearing loss is manifested by no worse than Level I hearing acuity in both ears. 4. Prior to December 22, 2017, the evidence does not show that the Veteran had any painful or unstable scars; as of December 22, 2017, the Veteran had one or two scars that were painful. 5. As of July 9, 2016, the Veteran had a workload of 3-5 METs due solely to his CAD which resulted in dyspnea or angina; with no episodes of acute congestive heart failure or left ventricular dysfunction with an ejection fraction less than 30 percent were noted. CONCLUSIONS OF LAW 1. The criteria for a higher (compensable) rating for right hand fifth finger arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5230. 2. The criteria for a 60 percent rating as of November 5, 2020 for post-operative right shoulder with degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5051. 3. The criteria for a higher (compensable) rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, DC 6100. 4. The criteria for a higher (compensable) rating prior to December 22, 2017, and higher than 10 percent thereafter for surgical scars of the right knee, chest, and right shoulder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.118, DC 7804. 5. The criteria for a 60 percent rating as of July 9, 2016 for CAD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.104, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1959 to January 1960, from November 1964 to May 1965, from December 1965 to June 1980, from July1986 to April 1987, from January 1991 to January 1994, and from February 1994 to December 1994. He is the recipient of the Purple Heart. The Board previously remanded these matters for additional development. Upon review, the Board finds there has been substantial compliance with its remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Right Hand Fifth Digit The Veteran has sought a higher rating for his right hand fifth finger arthritis, which is assigned a noncompensable (0%) rating pursuant to DC 5230. DC 5230 provides for a maximum, noncompensable evaluation for limitation of motion of the fifth finger (little finger). 38 C.F.R. § 4.71a, DC 5230. A noncompensable rating is also provided for unfavorable or favorable ankylosis of the fifth finger. 38 C.F.R. § 4.71a, DC 5227. A compensable rating for an individual fifth finger disability requires amputation. See 38 C.F.R. § 4.71a, DC 5156. Otherwise, higher ratings are available only for limitation of motion of the other fingers, or for the fifth finger in combination with at least one other finger. See 38 C.F.R. § 4.71a, DCs 5216-5229. The Veteran is not service connected for any other digits of the right hand. As such, the Board finds that a higher (compensable) rating for the right hand fifth finger is not warranted, as the Veteran is already in receipt of the maximum, noncompensable rating for limitation of motion of that finger. See 38 C.F.R. § 4.71a, DC 5230. The Board finds that further development is not necessary, as an estimate of the additional range-of-motion loss due to pain, excess fatigability, incoordination, or weakened movement during flare-ups and/or after repetitive use over time would have little probative value, because the Veteran is in receipt of the maximum rating available for limitation of motion of the fifth finger. In other words, as a zero percent disability rating is the maximum schedular rating allowable, the provisions of 38 C.F.R. § 4.59 (intending to recognize a minimum compensable rating is provided for actually painful joints) and 38 C.F.R. §§ 4.40 and 4.45 (providing for consideration of painful motion and functional loss) do not apply. The Board further finds that a higher rating is not warranted by analogy to amputation at the metacarpal or at the proximal interphalangeal joint, as the weight of the competent and probative evidence is against finding functional impairment of the right fifth finger such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. 38 C.F.R. § 4.71a, DC 5155. The Veteran’s VA examinations found that there is not functional impairment such that no effective function remains than that which would be equally well served by an amputation with prosthesis. See April 2015 and November 2020 VA examinations. The Board acknowledges the Veteran’s October 2019 hearing testimony wherein he reported limited motion and pain on motion of the finger; however, the Court has held that VA’s Rating Schedule makes it clear that a fifth finger disability manifested by limitation of motion or ankylosis is not compensable as there has been a determination that there is no specific impairment in earning capacity from this type of disability. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). All possibly applicable diagnostic codes have been considered, but the Veteran could not receive a higher and/or additional evaluation for his left fifth finger disability based on the evidence. 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. Right Shoulder The Veteran’s right shoulder has been assigned a 30 percent rating under DC 5051 since his 2013 grant of service connection. The Veteran was assigned a 100 percent rating from March 2, 2015, to May 1, 2016. As this represents the maximum award allowed under DC 5051, this period of time is not on appeal to the Board. Under DC 5051, a 100 percent evaluation is assigned for prosthetic replacement of the shoulder joint for one year following implantation of prosthesis. Thereafter, a 60 percent rating is assigned for chronic residuals consisting of severe, painful motion or weakness in the affected extremity. A minimum, 30 percent rating is assigned for intermediate degrees of residual weakness, pain or limitation of motion, which is to be rated by analogy to diagnostic codes 5200 and 5203. As the record shows that the Veteran is right-handed, the rating criteria pertaining to the major joint apply. 38 C.F.R. § 4.69. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. The Veteran’s right shoulder replacement surgery took place in March 2015. Prior to that time, the only available applicable rating higher than 30 percent would be under DC 5201. DCs 5200 and 5202 apply to ankylosis and impairment of the humerus, which were not shown in the Veteran’s examinations. Under DC 5201, a 40 percent rating is available for the Veteran’s dominant arm if his limitation of motion is restricted to 25 degrees from his side. The Board did not find any evidence which indicated that the Veteran’s restrictions prior to March 2015 were that severe. Private medical records show the Veteran’s at worst flexion was to 80 degrees and that he continued to play golf prior to his surgery. See July 2014 private medical record. Thus, the evidence of record showed that the Veteran’s right shoulder range of motion was not limited to 25 degrees from his side. A rating higher than 30 percent, then, is not supported by the record or warranted. After his March 2015 surgery, DC 5201 criteria requires findings of severe, painful motion or weakness in order to support a rating higher than 30 percent. In a November 2020 VA examination, the Veteran’s right shoulder demonstrated reported functional loss of 50 percent of his motion, flexion to 45 degrees after repetitive use, objective evidence of localized tenderness or pain on palpation, and pain limited use. Pain significantly limited the Veteran’s functional ability with repeated use over time. No ankylosis was noted and there were no conditions of the humerus, clavicle, AC joint, or other shoulder conditions noted. Based on the foregoing, the Board finds that a 60 percent rating for the Veteran’s right shoulder disability is warranted as of the Veteran’s November 5, 2020, VA examination. The examination noted that the Veteran had significant limitation of his right shoulder and pain and tenderness were documented on examination. The Board finds that these examination findings meet the criteria for a 60 percent rating. The Board has also considered the Veteran’s lay statements, including his 2019 hearing testimony. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for such, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. All possibly applicable diagnostic codes have been considered, but the Veteran does not meet the criteria for any such additional or separate ratings under DCs 5200-5203. 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. Bilateral Hearing Loss The Veteran’s bilateral hearing loss has been assigned a non-compensable rating pursuant to DC 6100. Evaluations of defective hearing range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. After review of the record, the Board does not find that any evidence supports a compensable rating for the Veteran’s bilateral hearing loss. The Veteran’s worst hearing was reported in a November 2020 VA examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 30 35 45 LEFT 50 45 25 25 45 Speech audiometry revealed speech recognition ability of 96 percent in his right ear and 94 percent in his left ear. Under Table VI, this corresponds to a hearing level of I in both ears. Under Table VII, this corresponds to a non-compensable rating. There are no other audiological results during the applicable appeal period. In sum, the objective testing of record does not show that a compensable rating is warranted for the Veteran’s bilateral hearing loss. During his VA examinations and his October 2019 hearing, the Veteran reported functional impairment such as difficulty hearing conversations. However, these are inherently part of the rating assigned to his hearing loss disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). There is no indication that his hearing loss results in any symptoms or functional impairment not contemplated by the rating schedule, and therefore there is no basis upon which a higher rating can be assigned. The Board notes that the benefit of the doubt has been applied, where applicable. Scars The Veteran’s scars have been assigned a noncompensable (0%) rating prior to December 22, 2017, and a 10 percent rating thereafter pursuant to DC 7804. Under DC 7804, a 10 percent rating is assignable for one or two scars that are unstable or painful. A 20 percent rating is assignable for three or four scars that are unstable or painful. A 30 percent rating is assignable for five or more scars that are unstable and painful. An April 2015 VA examination noted the Veteran had scars on his trunk, right shoulder, and right knee. None of the scars were noted to be painful or unstable. There were no findings that there was underlying soft tissue damage. The total area of the scars was well below 144 square inches. September and November 2020 VA examinations noted the Veteran’s right knee scar was painful. In November 2020, his truck scar was tender to palpation. There were no findings that there was underlying soft tissue damage or other painful scars. The total area of the scars was well below 144 square inches. Based on these findings, the evidence of record does not support a rating higher than 10 percent prior to December 22, 2017, under DC 7804. The Veteran underwent right knee surgery at that time and met the rating criteria for painful scars as of that date. The Veteran did not testify in his October 2019 hearing that his scars were painful. There are no other findings which show that the Veteran had more than two painful or tender scars or that any of his scars had underlying tissue damage or were unstable. As such, a rating higher than 10 percent as of December 22, 2017, for the Veteran’s painful scars is not warranted. The Board notes that the benefit of the doubt has been applied, where applicable. CAD The Veteran’s CAD is assigned a 10 percent rating prior to July 18, 2016, and a 30 percent rating thereafter under 38 C.F.R. § 4.104, DC 7005. Under DC 7005, a 30 percent rating requires a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent requires more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for CAD resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). The Veteran’s July 9, 2016, VA examination noted that his METs was 3-5 and that he suffered from angina as a result. His November 2020 VA examination also found that the Veteran’s METs were between 3-5 and that he suffered from dyspnea and fatigue as a result. As such, as of July 9, 2016, the Veteran met the criteria for a 60 percent rating for his CAD. Prior to that date there is no evidence that the Veteran met the criteria for a rating higher than 30 percent. An August 2014 Ischemic Heart Disease questionnaire provided by the Veteran’s private physician reported his METs were at 10.6 and did not report that the Veteran had any episodes of heart failure. His ejection fraction was 69 percent. Additionally, there is no evidence in the record which indicated the Veteran has suffered any episodes of congestive heart failure or that his ejection fraction was less than 30 percent at any time. The Veteran and his representative have not identified any such evidence or introduced any such evidence into the record. The Board has also considered the Veteran’s lay statements, including his 2019 hearing testimony. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for such, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As such, a rating of 60 percent, but no higher, is granted from the Veteran’s July 9, 2016, VA examination. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.