Citation Nr: 21073851 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-08 640 DATE: December 10, 2021 ORDER Entitlement to an initial rating of 10 percent for scar, gunshot wound to right hand to include ring finger, associated with gunshot wound right hand is granted. Entitlement to an initial rating in excess of 10 percent for gunshot wound right hand with painful/limited motion of the thumb is denied. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran's scar, gunshot wound to right hand to include ring finger, associated with gunshot wound right hand, is painful. 2. The Veteran's gunshot wound right hand causes limited thumb motion consisting of a gap of less than one inch between the thumb pad and the fingers, with the thumb attempted to oppose the fingers. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 10 percent, and no higher, for scar, gunshot wound to right hand to include ring finger, associated with gunshot wound right hand have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804. 2. The criteria for entitlement to an initial rating in excess of 10 percent for gunshot wound right hand with painful/limited motion of the thumb have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from June 1966 to June 1969, which included service in Vietnam. He is in receipt of a Purple Heart Medal among other medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2021 the Veteran testified before the undersigned Veterans Law Judge (VLJ) by virtual hearing; a transcript of the hearing is of record. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38C.F.R. §§3.321 (a), 4.1. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski,1 Vet. App. 49, 53 (1990). 1. Entitlement to a compensable initial rating for scar, gunshot wound to right hand to include ring finger, associated with gunshot wound right hand The Veteran suffered gunshot wounds to his right hand in service in Vietnam in March 1968. Service connection for 'scar, gunshot wound to right hand to include ring finger, associated with gunshot wound right hand' was granted in the November 2014 rating decision on appeal. An initial noncompensable rating was assigned from November 27, 2012, pursuant to 38 C.F.R. § 4.118, DC 7802. The rating decision reflects that a noncompensable rating was assigned for because neither scar was painful or unstable or involved the head, face or neck area. Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck (and therefore does not apply in this case). VA amended the criteria for rating skin disabilities effective from August 13, 2018. The August 13, 2018 skin amendments introduced a General Rating Formula for skin conditions and amend DCs 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118 (b) (August 13, 2018). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018, if more favorable. Former criteria: DC 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is assigned for an 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 assigned for an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned for an area or areas of 144 square inches (929 square centimeters) or greater. Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802, which provides for a 10 percent rating for scars with an area or areas of at least 144 square inches (929 square cm). Note 2 following defines a superficial scar as one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802 and note following. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 following defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under Code 7805 any disabling effect(s) [of scars] not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118. Revised Criteria: Under the revised criteria, DC 7801 provides ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. The criteria for a 10 percent rating were not revised. DC 7802 provides ratings for 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. The criteria for a 10 percent rating were not revised. DC 7804 was not revised. DC 7805 instructs that any disabling effects not considered in a rating under DCs 7800-7804 should be rated under an appropriate DC. DC 7805 was not amended in the revision of the rating criteria. In this case, the Veteran underwent a VA examination in June 2014. The examiner noted scars of the PIP joint of the ring finger and of the palm overlying the thenar muscle. The examiner noted that the hand wound had required skin graft to palm area to cover exit hole. The scars involving the PIP joint ring finger and exit palm over lying thenar muscle, were superficial and non-linear. Length and width of each superficial non-linear scar: Scar #1: 3.5 X 1.5 cm Scar #2: 1.1 X 0.5 cm. The scars were not painful or unstable. The VA examiner expressed findings that fail to meet the criteria for a compensable rating. The Veteran's right hand and ring finger scars were not deep and nonlinear. It did not cover an area or areas of at least 6 square inches (39 square centimeters). It was not unstable or painful; and it did not cause limitation of function. The Veteran's description about his scar symptoms is found to be more closely related to the diagnostic criteria for painful scars under DC 7804. Thus, the Board finds DC 7804, as opposed to DC 7802, is more applicable here. See Butts v. Brown, 5 Vet. App. 532 (1993). Under the former and revised DC 7804, a 10 percent rating is assigned for one or two qualifying scars that were unstable or painful on objective examination. While the VA examination report from 2014 indicates the Veteran's scars were neither painful nor unstable, the Veteran reported on his VA Form 9 that the scars are painful and tender. He also indicated the scar residuals limit movement and makes it difficult to use certain tools 'and implements in the course of a normal life.' At the hearing before the undersigned, the Veteran identified a scar on his right ring finger as well as a scar on his palm. The Veteran testified before the undersigned that his right ring finger is painful, and the pain is generally associated with the scar itself. The Veteran testified that his scars do not open on their own, but if he inadvertently hits it or scrapes it against something; it takes a while to heal. The Board finds, resolving doubt in the Veteran's favor, that his lay statements on his substantive appeal and his hearing testimony provides sufficient evidence to support a finding of a painful scar. The presence of one or two painful scars warrants a 10 percent rating under the former and revised DC 7804. A rating in excess of 10 percent is not warranted in so far as the scars do not cover an area or areas of 12 square inches (77 square centimeters) or greater and do not result in other functional impairment or disabling effects. 2. Entitlement to an initial rating in excess of 10 percent for gunshot wound right hand with painful/limited motion of the thumb The Veteran suffered gunshot wounds to his right hand in service in Vietnam in March 1968. Service connection for gunshot wound right hand was granted in the November 2014 rating decision on appeal. An initial noncompensable rating was assigned from November 2012. The Veteran disagreed with the initial rating. A December 2017 rating decision increased the initial rating to 10 percent from November 2012 for gunshot wound right hand with painful/limited motion of the thumb. That rating decision also granted service connection for gunshot wound of right hand with limited painful motion of the right ring finger with an initial noncompensable rating assigned; that rating is not currently on appeal. The Veteran's gunshot would with limitation of motion of the right thumb is rated under 38C.F.R. § 4.71a, DC 5228. Under DC 5228, in pertinent part, a 10 percent rating is warranted for limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is warranted for limitation of motion of the thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A VA examination was conducted in June 2014. The examiner noted that the Veteran sustained a gunshot wound to his right hand. The missile entered at the PIP joint of the ring finger and exited the thenar muscle. The Veteran reported that he "really doesn't have much problem with the hand. He has been living with it for 40+ years." The Veteran described intermittent tingling in distal fingertip and pain at the base of the thumb occasionally. He reported no limitations to activities of daily living and noted that he is retired. The Veteran did not report any flare-ups. The examiner noted limitation of motion of the thumb. The measured gap between the thumb pad and the fingers was less than one inch, including after repetitive motion. There was no objective evidence of painful motion. There was no ankylosis of the thumb. The examiner noted mild decreased grip with prolonged use. The examiner stated that there was no functional impairment of the right hand such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The objective evidence does not demonstrate a gap of more than two inches between the thumb pad and fingers such as would be required for a 20 percent rating under Diagnostic Code 5228. This included after repetitive motion testing. Further, the VA examiner indicated the Veteran did not have ankylosis of the thumb. Accordingly, a higher rating is not warranted under 38 C.F.R. § 4.71a, DCs 5224. The Veteran testified that he experienced thumb pain and gripping/strength problems with using implements such as pruning shears for several minutes at a time. In this regard, the Board notes that loss of use of a 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 the elbow with use of a suitable prosthetic appliance. 38C.F.R. § 4.63. The determination will be made on the basis of the actual remaining function of the hand, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. Id. In this regard, the Board observes that the June 2014 VA examination report specifically included the question of whether, due to the Veteran's right hand, finger or thumb condition, there was functional impairment of the extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner indicated no. Moreover, although the Veteran testified that he experienced thumb pain and gripping/strength problems with using implements, his testimony does not support the assignment of a higher rating based on loss of use. Upon review, no other probative medical evidence has addressed the question of whether the Veteran's right hand disability is so severe that he would be equally well served by an amputation and prosthesis. Thus, the Board defers to the VA examination report completed by a medical expert regarding this issue. For the foregoing reasons, the Board finds that an initial rating in excess of 10 percent for the Veteran's right hand gunshot wound with painful/limited motion of the thumb is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran contends that he has a chronic disability manifested by back pain that he believes is secondary to his service-connected scar, gunshot wound to the abdomen, right side lateral chest wall. He testified that he has had back pain for the past 40 years, but did not get treatment. He stated that he favors his right side and cannot sleep on that side. He essentially asserter that he had limited his movement due to pain from the service-connected gunshot wound and that this could have caused degenerative joint disease of the spine. The VA examination conducted in November 2014 diagnosed degenerative arthritis of the spine. The examiner did not consider these assertions of the Veteran. Accordingly, an addendum opinion is required to properly evaluate his claim. The matters are REMANDED for the following action: Obtaining a supplemental opinion regarding the etiology of the Veteran's claimed back disability. The claim file should be reviewed. The need for an in-person examination is left to the examiner's discretion. The examiner is asked to provide a response to the following: a) Is the Veteran's back disability, diagnosed as degenerative arthritis of the spine, at least as likely as not proximately due to his service-connected scar, gunshot wound to the abdomen, right side lateral chest wall, to include limitations of movement necessitated by pain from the service-connected disability? b) Is the Veteran's back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected scar, gunshot wound to the abdomen, right side lateral chest wall, to include limitations of movement necessitated by pain from the service-connected disability? A fully explained rationale must be provided. If the opinions cannot be rendered without resorting to speculation, the examiner must explain why this is so. The examiner is advised that the February 2018 VA Form 9 and the September 2021 Board Hearing Transcript (pages 4-10) provide additional information about the Veteran's contentions and the nature of the Veteran's symptoms over the years. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.