Citation Nr: 21061323
Decision Date: 10/01/21	Archive Date: 10/01/21

DOCKET NO. 17-31 941
DATE: October 1, 2021

ORDER

Entitlement to an increased rating of 30 percent, but no higher, prior to December 3, 2019 for gunshot wound scars is granted.

Entitlement to an increased rating in excess of 30 percent from December 3, 2019 for gunshot wound scars is denied.

Entitlement to an increased rating of 10 percent, but no higher, prior to November 17, 2020 for residuals of a right thumb fracture is granted.

Entitlement to an increased rating in excess of 10 percent from November 17, 2020 forward for residuals of a right thumb fracture is denied.

Entitlement to service connection for a right little and ring finger disability is denied.

REMANDED

Entitlement to a compensable rating for an injury to muscle group XIV in the right lower extremity is remanded.

Entitlement to a compensable rating for a right testicle wound is remanded.

FINDINGS OF FACT

1. Prior to December 3, 2019, the Veteran's gunshot wound scars were manifested by five or more painful, but not unstable, scars.

2. From December 3, 2019 forward, the Veteran's gunshot wound scars were manifested by five or more painful, but not unstable, scars.

3. Prior to November 17, 2020, the Veteran's right thumb fracture was manifested by painful motion, limitation of motion, and weakness; but not by a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers, ankylosis, or loss of use of the thumb.

4. From November 17, 2020 forward, the Veteran's right thumb fracture was manifested by painful motion, limitation of motion, and weakness; but not by a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers, ankylosis, or loss of use of the thumb.

5. A right ring or little finger disability have not been diagnosed during the period on appeal or proximate thereto.

CONCLUSIONS OF LAW

1. The criteria for an increased rating of 30 percent, but no higher, prior to December 3, 2019, for gunshot wound scars have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804.

2. The criteria for an increased rating in excess of 30 percent from December 3, 2019, forward for gunshot wound scars have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804.

3. The criteria for an increased rating of 10 percent, but no higher, prior to November 17, 2020 for residuals of a right thumb fracture have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228.

4. The criteria for an increased rating in excess of 10 percent from November 17, 2020 forward for residuals of a right thumb fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228.

5. The criteria for service connection for a right little and ring finger disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1998 to September 1999, August 2004 to May 2006, and August 2006 to August 2009. The Board notes that the Veteran was initially discharged from his period of service from December 1998 to September 1999 under other than honorable conditions, but in January 2013 this was upgraded to an honorable discharge.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2013 and July 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, in April 2013 the RO granted an increased rating of 20 percent for the Veteran's gunshot wound scars, and denied increased ratings for the right testicle wound, right thumb fracture, and a muscle group XIV injury. The Veteran filed a notice of disagreement with the 20 percent rating assigned for the scars and the denials of increased ratings for the other disabilities in May 2013.

In July 2014, the RO denied entitlement to service connection for a middle finger, ring finger, and knuckles disability of the right hand, and the Veteran filed a notice of disagreement with that denial in August 2014. In April 2017 the RO issued two statements of the case, one denying increased ratings for the right thumb fracture, right testicle wound, and gunshot wounds, and the other denying service connection for a middle finger ring finger, and knuckles disability. The Veteran then perfected an appeal of all of the issues in both statements of the case to the Board in June 2017.

The Board remanded the issues on appeal for additional development in January 2020. VA treatment records were obtained in January 2020, September 2020, and January 2021, and the requested examinations and opinions were obtained in November 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 

In January 2020, the Board also granted service connection for a left shoulder disability. As this constitutes a full grant of the benefits sought, that issue is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). Further, while on remand the RO granted service connection for a right middle finger disability in a January 2021 rating decision. As this constitutes a full grant of the benefits sought on appeal, that issue is no longer on appeal before the Board. Id.

The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is of record.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

1. Entitlement to an increased rating for gunshot wound scars.

As an initial matter, the Board notes that the Veteran has been found to have scars affecting his right upper extremity, right lower extremity, and right hand. The current rating on appeal is assigned under Diagnostic Code 7804, which governs painful or unstable scars generally. Thus, the Board will evaluate the current increased rating claim based on the total number of painful or unstable service-connected scars that have been identified. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 3.

The Board further notes the Veteran has been assigned separate noncompensable ratings for right upper extremity and right lower extremity scars based on the total area affected under Diagnostic Code 7802. 38 C.F.R. § 4.118, Diagnostic Code 7802. These separate additional ratings are specifically allowed under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 3. However, the Veteran has not separately perfected an appeal as to the assigned noncompensable ratings for the right upper extremity and right lower extremity scars under Diagnostic Code 7802. As such, these noncompensable ratings are not currently before the Board and will not be addressed further.

The Veteran's gunshot wound scars are currently rated under Diagnostic Code 7804. Under Diagnostic Code 7804, a 20 percent rating is warranted for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 30 percent rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note 1. 

Throughout the period on appeal, the Veteran has consistently stated that his scars are painful. During his December 2019 hearing testimony, the Veteran reported that he had at least five scars that were both painful and unstable. These statements are competent, and there is no evidence that they are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, they are entitled to probative weight as to the severity of the Veteran's disability during the period at issue.

The Veteran was provided with VA examinations concerning his scars in March 2013, June 2014, January 2015, and November 2020. In March 2013, the Veteran reported that he had five scars on his right thigh and one scar on his right thumb. The Veteran at the time stated that two of the scars were tender and that they were all stable. The examiner stated that on examination three of the scars were painful, but none of the scars were unstable. None of the scars were noted to affect the head face or neck, nor were the scars noted to be deep or be accompanied by underlying soft tissue loss. The examiner further noted that there were no other disabling effects associated with the noted scars.

In June 2014, the examiner noted a right shoulder scar, three right medial thigh scars, and one right lower leg scar. The examiner stated that none of the scars were painful or unstable. The examiner further noted that none of the scars affected the head, face, or neck, were deep or accompanied by soft tissue damage, or had any other disabling effects. The January 2015 examiner noted that the Veteran had three right shoulder scars that were painful, but not unstable. The examiner noted the scars did not affect the head, face, or neck, were not deep or accompanied by soft tissue loss, and did not have any other disabling effects.

Finally, in November 2020 the examiner noted that the Veteran had five scars of the right upper extremity, one right thigh scar, and two scars of the right lower leg. The examiner then stated that the Veteran had five or more painful but not unstable scars. The examiner stated that the scars did not affect the head, face, or neck, that there was no soft tissue damage, and that there were no other disabling effects associated with the scars. There is no evidence that the above examiners were either not competent or credible. Further, each assessment was based both on the Veteran's own reports of his symptoms and each examiner's objective examination of the Veteran's scars. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Based on the foregoing, the Board finds that an increased rating of 30 percent, but no higher, prior to December 3, 2019, is warranted. The Board notes that the March 2013 examiner noted only three painful scars. However, the examiner noted only scars affecting the thigh and hand, and not those affecting the right shoulder. Likewise, while the January 2015 examiner also noted only three painful scars, the examiner only considered those scars affecting the right shoulder, and not those affecting the right thigh and hand. When these two examination reports are read in tandem, they reflect that in total the Veteran had five or more painful scars during the period prior to December 3, 2019. This conclusion is further supported by the Veteran's testimony, who indicated that he had five or more painful scars as a result of his in-service mortar injury throughout the period at issue. The Board acknowledges the June 2014 report that the Veteran had no painful scars, however, this finding is outweighed by the other examinations of record, which when read together establish the presences of five or more painful scars prior to December 3, 2019. As such, an increased rating of 30 percent, but no higher, prior to December 3, 2019 is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804.

However, an increased rating in excess of 30 percent is not warranted at any point during the period on appeal. First, a 30 percent rating is the maximum allowable rating for scars that are either painful or unstable. Id. As such, the Veteran is already in receipt of the maximum allowable rating for scars that are solely painful.

The Board notes that for scars which are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. However, the preponderance of the evidence is against a finding that the Veteran's scars have been both painful and unstable throughout the period on appeal. None of the four VA examiners noted that any of the identified scars were painful, nor do the Veteran's treatment records reflect complaints that his scars are unstable or that there is frequent loss of the covering of skin over the scar. While the Veteran stated during his hearing testimony that his scars are unstable, the Veteran specifically denied having any unstable scars at the time of the March 2013 VA examination. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). He further only endorsed symptoms of pain, and not instability, at the subsequent VA examinations. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding the Veteran's scars were both painful and unstable during the period on appeal, and therefore an increased rating in excess of 30 percent is not warranted in this case. 38 C.F.R. § 4.118, Diagnostic Code 7804. 

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. As noted above, the Veteran is already in receipt of ratings based on area affected for the scars of the right upper extremity and right lower extremity. 38 C.F.R. § 4.118, Diagnostic Code 7801. There is no evidence that any of the Veteran's scars are deep or associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. Finally, the Veteran's scars do not affect his head, face or neck, nor does any of the evidence indicate that the scars have other disabling effects not already compensated. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7805.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). Based on the foregoing, an increased rating of 30 percent, but no higher, prior to December 3, 2019 for the Veteran's gunshot wound scars is warranted. However, the preponderance of the evidence is against an increased rating in excess of 30 percent for the Veteran's service-connected gunshot wound scars at any point during the period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

2. Entitlement to an increased rating for a right thumb fracture.

As an initial matter, the Board notes that effective February 7, 2021, the schedule for rating disabilities of the musculoskeletal system was amended. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, this amendment did not change the diagnostic criteria applicable to the Veteran's right thumb fracture. As such, the February 2021 amendment need not be discussed further.

The Veteran's right thumb fracture is rated under Diagnostic Code 5228. Under Diagnostic Code 5228, limitation of motion of the thumb on the major or minor side with a gap of less than one inch (2.5 centimeters (cm.)) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5228. A 10 percent rating is warranted for limitation of motion of the thumb on the major or minor side with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and finders, with the thumb attempting to oppose the fingers. Id. A 20 percent rating is warranted for limitation of motion of the thumb on the major or minor side with a gap of more than two inches (5.1 cm.) between the thumb pad and finders, with the thumb attempting to oppose the fingers. Id.

Throughout the period on appeal, the Veteran has reported that his right thumb fracture is manifested by painful motion and limitation of motion. During his December 2019 hearing, the Veteran again stated that he experienced painful motion of the thumb, as well as feelings of weakness. The Veteran is competent to report such lay observable symptoms, and there is no evidence that he is not credible. Jandreau, 492 F.3d 1372. As such, his statements are entitled to significant probative weight.

The Veteran was provided with VA examinations concerning his thumb in March 2013, June 2014, and November 2020. In March 2013, the Veteran reported feelings of intermittent pain, weakness, and limitation of motion in the right thumb. The Veteran denied experiencing any flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). On examination the Veteran did not have a gap between the thumb pad and the fingers and there was no objective evidence of pain on motion. The examiner further stated that there was no evidence of ankylosis or loss of use of the right thumb.

In June 2014, the examiner noted that the Veteran reported intermittent pain, as well as daily flare-ups of the disability lasting approximately 15 to 20 minutes. The examiner stated that there was no limitation of motion of the thumb and there that was no evidence of pain on motion. There was no further loss of motion with repeated testing over time. Finally, the examiner stated that there was no ankylosis or loss of use.

During the November 2020 examination, the Veteran reported experiencing pain in the thumb. The Veteran also reported flare-ups of the right hand that occurring monthly and lasting one to two days, which were manifested by severe pain. The examiner noted limitation of motion, but that there was not a gap between the thumb pad and the fingers. There was additional limitation of motion of the thumb after repetitive testing, but no gap between the thumb pad and the fingers. The examiner additionally estimated that while there would be additional limitation of flexion of the thumb during flare-ups, there would not be a gap between the thumb pad and the fingers. Id. The examiner noted pain on active motion, passive motion, weightbearing, and non-weightbearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Finally, the examiner stated that there was no ankylosis or loss of use of the right thumb.

There is no evidence that the above examiners were either not competent or credible, and further each examiner based their assessment on both the Veteran's account of his symptoms and their own objective examination of the thumb. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

The Board notes that the required testing for pain was not conducted in March 2013 or June 2014 and the June 2014 examiner did not provide an estimate concerning range of motion loss during flare-ups. However, these issues do not vitiate the probative value of other findings contained in the examination reports. Further, the November 2020 VA examination report contains the necessary testing for pain and an estimate concerning motion loss during flare-ups, thus curing the defects in the earlier examinations. As such, the Board finds it has sufficient information to accurately rate the Veteran's right thumb fracture. 

VA treatment records reflect complaints of right thumb pain, but no further range of motion testing. None of the records indicate that the Veteran has lost the use of his right thumb or that his thumb is fixed in any position.

Based on the above, the Board finds that an increased rating of 10 percent, but no higher, prior to November 17, 2020 is warranted. It is uncontroverted that the Veteran does not have a gap between the thumb pad and fingers as required for a compensable rating based on limitation of motion. However, when compensable limitation of motion of the affected joint is not present, the minimum compensable rating for a joint may be assigned for painful motion of the joint. See Petitti v. McDonald, 27 Vet. App. 415, 424 (2015); see also Sowers v. McDonald, 27 Vet. App. 472, 47982 (2016). 

To this end, throughout the period on appeal the Veteran has competently and credibly reported that he experienced pain on motion in the right thumb. Although no pain was noted during the March 2013 and June 2014 examinations, objective evidence of painful motion is not necessarily required. As the evidence clearly establishes that the Veteran has painful motion, and as Diagnostic Code 5228 provides for a compensable rating, the Board finds that at 10 percent rating is warranted prior to November 17, 2020, for the Veteran's right thumb fracture based on the presence of painful motion. 38 C.F.R. § 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5228.

An increased rating in excess of 10 percent is not warranted at any point during the period on appeal. As noted above, the Veteran has at no point been noted to have a gap between the thumb pad and fingers of 2 inches or more, as required for a 20 percent rating based on limitation of motion of the thumb. Indeed, all of the examination reports show that the Veteran does not have a gap between the thumb pad and fingers at all. In evaluating the Veteran's current level of disability functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, the November 2020 examiner specifically stated that even during a flare-up the Veteran would not have a gap between his thumb pad and fingers. Thus, even when considering additional loss of motion and function during flare-ups the Veteran does not meet the requirements for a higher rating based on limitation of motion of the thumb. As such, a rating in excess of 10 percent based on limitation of motion of the thumb is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5228.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The Veteran has not alleged, and the evidence does not reflect, that the Veteran is unable to move his thumb, including during flare-ups of the disability. Indeed, the November 2020 examiner specifically noted that the Veteran would retain the ability to move his thumb during flare-ups. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, a higher rating based on ankylosis of the thumb is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5224. Further, none of the medical evidence reflects that the functioning of the thumb is so limited that the Veteran would be equally well served by amputation and prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5152.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 36970. Based on the above, an increased rating of 10 percent, but no higher, prior to November 17, 2020 for the Veteran's right thumb fracture is warranted. However, the preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected right thumb fracture at any point during the period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006).

3. Entitlement to service connection for a right little and ring finger disability

The Veteran has asserted that he has right little finger and ring finger disabilities that are related to service. While competent to report lay observable symptoms such as pain, the Veteran is not competent to diagnose himself with a little finger or ring finger disability, as to do so requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, these statements are entitled to no probative weight.

The Board notes that the Veteran has reported experiencing pain in the fingers of his right hand during the period on appeal. While pain alone may constitute a disability for the purposes of service connection, there must be a showing that the pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 1517 (2020). In this case, there is no evidence that the pain present in the little or ring fingers has resulted in functional impairment of earning capacity. Further, there is no medical evidence of any compensable symptomatology present in either the right ring finger or right little finger, when considered individually or together. As such, the evidence does not establish that the reported pain in the right ring and little finger, in and of itself, is a disability for VA purposes.

The Veteran underwent VA examinations concerning his hand and fingers in March 2013, June 2014, and November 2020. None of the examiners noted that the Veteran had any disabilities of the little or ring finger on the right hand. The November 2020 examiner further specifically stated that on physical examination the Veteran's right ring finger was normal, and x-ray images taken at the time of the examination were negative. There is no evidence that the above examiners were either not competent or credible, and each assessment was based both on the Veteran's reports and each examiner's objective examination of the right hand and fingers. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the presence of a ring or little finger disability. Nieves-Rodriguez, 22 Vet. App. 295. Treatment records do not reflect any diagnosis of a right ring or little finger disability.

Based on the foregoing, the Board finds that there is no evidence of a right ring or little finger knee disability either during the appellate period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). None of the medical evidence contains diagnoses of a ring or little finger disability, nor did the Veteran identify any diagnoses in his statements. Further, the Veteran is not competent to provide a formal diagnosis of a disability and there is no evidence that the reported pain results in functional impairment of the Veteran's earning capacity, as there is no evidence of compensable symptoms in either the little or ring finger when analyzed individually or together. As there is no competent evidence of a current disability, service connection for a right ring and little finger disability is not warranted on any basis. Brammer, 3 Vet. App. at 225 (1992).

The preponderance of the evidence weighs against a finding that the Veteran has a right little or ring finger disability during the period on appeal or the period proximate thereto. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

REASONS FOR REMAND

1. Entitlement to an increased rating for a right lower extremity muscle group XI injury.

As discussed in the introduction above, in the April 2013 rating decision on appeal the RO denied a compensable rating for a muscle group XIV injury, and the Veteran filed a notice of disagreement with the denial of a compensable rating for that disability in May 2013. However, the issues of entitlement to an increased rating for a muscle group XIV injury was not included in either of the statements of the case issued in April 2017, nor has it been included in a statement of the case issued since. The Board notes that an April 2017 rating decision assigned several additional muscle injury ratings, including an increased rating of 10 percent for the muscle group XIV injury, effective the date of the Veteran's claim.

However, this award does not constitute a full grant of the benefits sought on appeal, nor does it remove the obligation to issue a statement of the case adjudicating an issue when a valid notice of disagreement has been filed. 38 C.F.R. §§ 19, 26, 19.29. When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C. § 7105; 38 C.F.R. § 19.26; see Manlincon, 12 Vet. App. 238.

2. Entitlement to an increased rating for a right testicle wound.

During the period on appeal, the Veteran has asserted that his right testicle injury has resulted in erectile dysfunction, and the Veteran's representative argued in the July 2021 appellate brief that the right testicle injury had resulted in erectile dysfunction. The Board notes that the VA examination reports of record, including the most recent examination in November 2020, all noted that the Veteran did not have erectile dysfunction. However, none of the examiner's, in particular the most recent examiner, reconciled this determination with the Veteran's treatment records, which reflect a diagnosis of erectile dysfunction and a prescription for erectile dysfunction medication. As such, the Board finds that a remand is necessary to determine whether the Veteran's right testicle wound results in erectile dysfunction, or otherwise results in the loss of use of a creative organ. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1).

The matters are REMANDED for the following action:

1. Send the Veteran and his representative a statement of the case adjudicating the claim for an increased rating for a muscle group XIV injury. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 

2. Schedule the Veteran's for a VA examination to determine the current severity of his right testicle wound. All testing deemed necessary should be performed. The examiner should answer the following:

a)	Does the Veteran have erectile dysfunction?

If the answer to this question is no, the examiner should reconcile this conclusion with the Veteran's VA treatment records, which reflect a diagnosis of erectile dysfunction and a prescription for erectile dysfunction.

b)	If so, is it at least as likely as not (a fifty percent probability or greater) that the erectile dysfunction was caused by the service-connected right testicle disability?

c)	If not, is it at least as likely as not (a fifty percent probability or greater) that the erectile dysfunction was aggravated (worsened) by the right testicle disability?

A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.