Citation Nr: 21065407 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-26 473 DATE: October 26, 2021 ORDER An initial compensable rating prior to January 14, 2020 and in excess of 10 percent thereafter for a left hand residual scar, status post tendon transfer surgery, is denied. An initial compensable rating for a left hand linear scar is denied. REMANDED The issue of entitlement to an initial compensable rating for left thumb degenerative arthritis with limitation of motion, status post laceration and tendon transfer surgery, prior to August 15, 2011 and in excess of 10 percent thereafter is remanded. The issue of entitlement to an initial rating in excess of 10 percent for left thumb neuropathy, status post tendon transfer, is remanded. The issue of entitlement to an initial compensable rating for left fourth finger deformity, status post tendon transfer surgery, is remanded. FINDINGS OF FACT 1. Prior to January 14, 2020, there was no evidence of superficial scars, tender, and painful on objective demonstration; scars that were superficial and that did not cause limited motion, area or areas of 144 square inches (929 sq. cm.) or greater; scars, superficial, which were shown to be painful and tender on examination; scars that were superficial and nonlinear area or areas of 144 square inches (929 square centimeters) or greater; scars not associated with underlying soft tissue damage area or areas of 144 square inches (929 square centimeters) or greater; or scars that are unstable or painful. 2. From January 14, 2020 onward, the Veteran's left hand scar was painful; there was no evidence of scars not associated with underlying soft tissue damage area or areas of 144 square inches (929 sq. cm.) or greater; unstable scars; or more than one painful scar. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to January 14, 2020 and in excess of 10 percent thereafter for a left hand residual scar, status post tendon transfer surgery, are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804. 2. The criteria for an initial compensable rating for a left hand linear scar are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to July 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. These claims were previously before the Board in June 2019 at which time they were remanded for further development. 1. Entitlement to an initial compensable rating prior to January 14, 2020 and in excess of 10 percent thereafter for a left hand residual scar, status post tendon transfer surgery 2. Entitlement to a compensable rating for a left hand linear scar Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's residual scar, status post tendon transfer surgery, left hand is currently rated noncompensable prior to January 14, 2020 and 10 percent, thereafter, under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Veteran's left hand linear scar is currently rated noncompensable from January 14, 2020 onward, under 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7800 (as in effect prior to August 30, 2002) pertained to scar, disfiguring of the head, face, or neck; Diagnostic Code 7801(as in effect prior to August 30, 2002) pertained to third degree burn scars; and Diagnostic Code 7802 (as in effect prior to August 30, 2002) pertained to second degree burn scars. As the scar is located on the Veteran's left hand and is not a burn scar, these codes are not for application. Under Diagnostic Code 7803 (as in effect prior to August 30, 2002) a 10 percent rating is warranted for superficial scars, poorly nourished, with repeated ulceration. Under Diagnostic Code 7804 (as in effect prior to August 30, 2002), a 10 percent rating is warranted for superficial scars, tender, and painful on objective demonstration. Under Diagnostic Code 7805 (as in effect prior to August 30, 2002), other scars will be rated on limitation of function of part affected. Diagnostic Code 7800 (as in effect from August 30, 2002 to October 23, 2008) pertained to scar, disfigurement of the head, face, or neck. As the scar is located on the Veteran's left hand this code is not for application. Under Diagnostic Code 7801 (as in effect from August 30, 2002 to October 23, 2008), scars, other than the head face, or neck, that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 square centimeters) warrant a 10 percent disability rating. A 20 percent rating is warranted for area or areas exceeding 12 square inches (77 square centimeters), a 30 percent rating is warranted for an area or areas exceeding 72 square inches (465 square centimeters), and a 40 percent rating is warranted for an area or areas exceeding 144 square inches (929 square centimeters). Under Diagnostic Code 7802 (as in effect from August 30, 2002 to October 23, 2008), a 10 percent rating is warranted for scars, other than head, face, or neck, that are superficial and that do not cause limited motion, area or areas of 144 square inches (929 square centimeters) or greater. Under Diagnostic Code 7803 (as in effect from August 30, 2002 to October 23, 2008), a 10 percent rating is warranted for unstable superficial scars. Under Diagnostic Code 7804 (as in effect from August 30, 2002 to October 23, 2008), a 10 percent rating is warranted for scars, superficial, which are shown to be painful and tender on examination. Under Diagnostic Code 7805 (as in effect from August 30, 2002 to October 23, 2008), other scars will be rated on limitation of function of the affected part. From October 23, 2008 to August 13, 2018, Diagnostic Code 7800 pertained to burn scars of the head, face, or neck, scars of the head, face, or neck due to other causes, or other disfigurement of the head, face, or neck. As the scar is located on the Veteran's left hand this code is not for application. Under Diagnostic Code 7801 (as in effect from October 23, 2008 to August 13, 2018), burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear area or areas of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters) warrant a 10 percent disability rating. A 20 percent rating is warranted for area or areas of at least 12 square inches (77 square centimeters), but less than 72 square inches (465 square centimeters); a 30 percent rating is warranted for an area or areas of at least 72 square inches (465 square centimeters), but less than 144 square inches (929 square centimeters); and a 40 percent rating is warranted for an area or areas of 144 square inches (929 square centimeters) or greater. Under the Diagnostic Code 7802 (as in effect from October 23, 2008 to August 13, 2018), scars not of the head, face, or neck, which are superficial and nonlinear, area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent disability rating. Under Diagnostic Code 7804 (as in effect from October 23, 2008 to August 13, 2018), one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Under the Diagnostic Code 7805 (as in effect from October 23, 2008 to August 13, 2018), any disabling effects of scars, other (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes are to be evaluated. From August 13, 2018, Diagnostic Code 7800 pertained to burn scars of the head, face, or neck, scars of the head, face, or neck due to other causes, or other disfigurement of the head, face, or neck. As the scar is located on the Veteran's left hand this code is not for application. Under Diagnostic Code 7801 (as in effect from August 13, 2018), a 10 percent rating is warranted for a scar that is not of the head, face, or neck, that is associated with underlying soft tissue damage, and that has an area of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted for area or areas of at least 12 square inches (77 square centimeters), but less than 72 square inches (465 square centimeters); a 30 percent rating is warranted for an area or areas of at least 72 square inches (465 square centimeters), but less than 144 square inches (929 square centimeters); and a 40 percent rating is warranted for an area or areas of 144 square inches (929 square centimeters) or greater. Under Diagnostic Code 7802 (as in effect from August 13, 2018), a 10 percent rating is warranted for a scar not of the head, face, or neck, not associated with underlying soft tissue damage area or areas of 144 square inches (929 square centimeters) or greater. Under Diagnostic Code 7804 (as in effect from August 13, 2018), one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Under the Diagnostic Code 7805 (as in effect from August 13, 2018), any disabling effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes are to be evaluated. After reviewing the evidence of record, the Board finds that an initial compensable rating prior to January 14, 2020 and an initial rating in excess of 10 percent thereafter is not warranted for the Veteran's residual scar, status post tendon transfer surgery, left hand, under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board also finds that a compensable rating for the Veteran's left hand linear scar is not warranted from January 14, 2020 onward, under 38 C.F.R. § 4.118, Diagnostic Code 7802. In addressing the period prior to January 14, 2020, the Board considered the August 30, 2002, October 23, 2008, and August 13, 2018 amendments; however, there was no evidence of superficial scars, tender, and painful on objective demonstration; scars that were superficial and that did not cause limited motion, area or areas of 144 square inches (929 square centimeters) or greater; scars, superficial, which were shown to be painful and tender on examination; scars that were superficial and nonlinear, area or areas of 144 square inches (929 square centimeters) or greater; scars not associated with underlying soft tissue damage, area or areas of 144 square inches (929 square centimeters) or greater; or scars that were unstable or painful. A November 1968 examination report documented an old, healed scar 12 inch in length on the thenar eminence of the left hand and more recent operative scars consisting of a 1-inch scar on the volar aspect of the left wrist, a 1 12 inch scar in the palm in the crease just outside the thenar eminence, a 1 12 inch curved scar on the dorsum of the proximal phalanx of the thumb, and an angulated scar over the proximal interphalangeal joint of the ring finger. A March 2013 VA examination report documents that scars were not painful and/or unstable, or total area of all related scars greater than 39 square centimeters (6 square inches). The examiner documented a healed incisional scar to palmar aspect of the left wrist and hand measuring 7 x 1/8 centimeters. The skin was colored, superficial, and not tender with deep palpation. Texture was not elevated or depressed, irregular, atrophic, shiny, scaly, hypo pigmented, unstable, or ulcerated. There was no evidence of erythema, ecchymosis, neuropathy, inflammation, edema, inflexibility, functional impairment, disfigurement, or asymmetry. The Board also considered the additional potentially applicable Diagnostic Codes (including the relevant amendments), however, there was also no evidence of superficial scars, poorly nourished with repeated ulceration; scars that were deep, caused limitation of motion in an area or areas exceeding 6 square inches (39 square centimeters); scars that were unstable superficial scars; scars that were deep and nonlinear area or areas of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters); or scars associated with underlying soft tissue damage, and that has an area of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters). In addressing the period from January 14, 2020 onward, there is no evidence of scars not associated with underlying soft tissue damage, area, or areas of 144 square inches (929 square centimeters) or greater; unstable scars; or more than one painful scar. The Board acknowledges the evidence of a painful thumb scar, however, as indicated above, the Veteran is already in receipt of a 10 percent rating for residual scar, status post tendon transfer surgery, left hand, under 38 C.F.R. § 4.118, Diagnostic Code 7804 from January 14, 2020 onward. A January 2020 VA examination report documents a painful scar on thumb. The scar was not unstable with frequent loss of covering of skin over the scar, the scar was located from the top of the thumb to the wrist and 11 x 0.2 centimeters, the scar was taunt which affected the range of motion of the thumb and ring finger. In a July 2020 VA addendum, an examiner confirmed that the Veteran's painful scar was caused or incurred in military service. The examiner reviewed the Veteran's service treatment records (STRs) and concluded that the scars noted in 1968 pre-surgical procedure were on the mid base of the thumb on the fat pad; the larger surgical scar which the Veteran reported as painful was not present prior to the in-service surgery. Based on the foregoing, an initial compensable rating prior to January 14, 2020 and an initial rating in excess of 10 percent thereafter is not warranted for the Veteran's residual scar, status post tendon transfer surgery, left hand, under 38 C.F.R. § 4.118, Diagnostic Code 7804; and a compensable rating for the Veteran's left hand linear scar, is not warranted from January 14, 2020 onward, under 38 C.F.R. § 4.118, Diagnostic Code 7802. The Veteran's private treatment records and VA treatment records are void of any evidence supportive of a finding that the Veteran's scars should be rated higher. The Board acknowledges that the January 2020 VA examiner documented a thumb scar affecting the range of motion of the thumb and ring finger; however, the Board notes that the Veteran is already rated for limitation of motion of the thumb under 38 C.F.R. § 4.71a Diagnostic Code 5228 and for left fourth finger deformity under 38 C.F.R. § 4.71a Diagnostic Code 5230. See 38 C.F.R. § 4.14. As explained more fully below, both of those ratings are remanded for additional development. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for left thumb degenerative arthritis with limitation of motion, status post laceration and tendon transfer surgery, prior to August 15, 2011 and in excess of 10 percent, thereafter, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left thumb neuropathy, status post tendon transfer, is remanded. 3. Entitlement to an initial compensable rating for left fourth finger deformity, status post tendon transfer surgery is remanded. Although the Board regrets the additional delay, it finds that remand is necessary for additional development. The Veteran contends that his status post tendon transfer surgery residuals are more severe than as reflected by the ratings currently assigned. Specifically, the Veteran contends that as a result of the surgery he experiences limitation of motion, pain, and ankylosis. In this regard, March 2013, and January 2020 VA examination reports document left thenar group atrophy. The Board notes that the Veteran is already in receipt of ratings for left thumb degenerative arthritis with limitation of motion; left thumb neuropathy; and a left fourth finger deformity. In order to accurately rate these disabilities, an addendum opinion is needed addressing how the thenar atrophy affects the hand, including the functional limitations associated with the atrophy, and the extent to which they overlap with left thumb neuropathy, left thumb loss of range of motion, and the left fourth finger deformity. Additionally, given the longstanding nature of the pending increased rating claims and the significant temporal gaps in opinions regarding the Veteran's status post tendon transfer surgery residuals, a remand for a retrospective opinion is necessary. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his status post tendon transfer surgery residuals: (1) left hand disabilities and (2) left upper extremity peripheral nerves condition. The claims file (including any additional medical evidence obtained as a result of this Remand) should be made available to the examiner for review. The examiner should consider the full history, including the Veteran's competent account of his symptoms. After noting all relevant findings, the examiner should address the following: (a.) Provide a retrospective opinion regarding the nature and severity of the Veteran's left hand disabilities for the period from January 20, 1971 to March 15, 2013. (b.) Throughout the period on appeal (from January 20, 1971 to current) how has thenar group atrophy affected the hand? Specifically, what are the functional limitations associated with thenar atrophy, and to what extent do they overlap with left thumb neuropathy and left thumb loss of range of motion? (c.) Please comment as to whether the neurological impairment associated with the left hand disability most nearly approximates mild, moderate, moderate severe, or severe impairment, considering the overall functional impact of the neuropathy on left hand function. Specifically, to what degree is the Veteran's ability to carry out routine daily tasks with his dominant hand affected by neuropathy? All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.