Citation Nr: A21020153 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200526-87878 DATE: December 16, 2021 ORDER A rating in excess of 70 percent for left distal forearm amputation is denied. Service connection for left arm phantom pains is denied. FINDINGS OF FACT 1. The Veteran's amputation of the left distal forearm was below the insertion of the deltoid. 2. The Veteran experiences phantom pains in his left arm, due to his left distal forearm amputation. 3. The Veteran is already in receipt of a 70 percent rating for the left distal forearm amputation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for amputation of the left arm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5121-5122. 2. The criteria for a separate rating for left arm phantom pains have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to March 2003. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This case comes to the Board after the Veteran filed a VA Form 10182 selecting the Direct Review docket, following the issuance of the April 2020 rating decision regarding the service connection claim and the May 2020 rating decision regarding the increased rating claim. Of note, those rating decisions serve as the decisional documents which close the record for adjudication. That is, by selecting the Direct Review docket, the Veteran accepted that the Board's review would be limited to the evidence that was of record as of the April 2020 rating decision regarding the service connection claim and the May 2020 rating decision regarding the increased rating claim. A rating in excess of 70 percent for left distal forearm amputation is denied. The Veteran asserts that he is entitled to an increased rating for his left distal forearm amputation. VA received the Veteran's increased rating claim on March 5, 2020. An April 2020 rating decision granted a 70 percent rating, effective the date of claim. The Veteran reported severe phantom pains in his residual limb and experiences feelings of his hand being balled up, itching, and muscle spasms. The Agency of Original Jurisdiction (AOJ), in this case a VA Regional Office (RO), construed the Veteran's description of phantom pain as a service connection claim; this will be separately addressed elsewhere in this decision. Diagnostic Code 5122, within 38 C.F.R. § 4.71a, provides that amputation of the arm below the insertion of the deltoid is rated as 70 percent disabling for the minor arm and 80 percent disabling from the major arm. The Veteran's left distal forearm amputation is rated 70 percent disabling under Diagnostic Code 5122, based on amputation below insertion of the deltoid, but above the insertion of the pronator teres. The record reflects that the Veteran is right-handed and, therefore, his left arm is his minor arm. The next highest rating under Diagnostic Code 5122 provides that amputation of the arm above the insertion of the deltoid is rated as 80 percent disabling for the minor arm and 90 percent disabling from the major arm. The Veteran was afforded a VA examination in March 2020. The Veteran reported continued pain around the stump and phantom pains and tingling as if his hands and fingers were still there. On examination, his amputation was found to be below the insertion of the deltoid and above the insertion of the pronator teres. Here, the evidence of record shows that the Veteran's left distal forearm was amputated below the insertion of the deltoid. The criteria for rating amputations of the upper extremities focus solely on the anatomical location of the amputation and the record does not reflect that the Veteran's left (minor) arm was amputated above the insertion of the deltoid. As such, the weight of the evidence is against finding that a rating in excess of 70 percent for the left distal forearm amputation is warranted. As the preponderance of the evidence is against the Veteran's claim for increase, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for left arm phantom pains is denied. The Veteran asserts that he is entitled to a separate rating for phantom pain of the left arm. Specifically, he has reported that he experiences pain and tingling in the area where is left hand and fingers used to be. VA regulations contain a provision known in VA parlance as the "Amputation Rule" which limits the combined rating that may be assigned for individually rated disabilities of a single extremity. Found at 38 C.F.R. § 4.68, the "Amputation Rule" states: "The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, Diagnostic Code 5165. This 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level. Painful neuroma of a stump after amputation shall be assigned the evaluation for the elective site of reamputation." Here, the Veteran had an amputation below the insertion of the deltoid, which warrants a 70 percent rating under Diagnostic Code 5122. Consequently, the maximum available combined schedular rating that may be assigned for the service-connected disabilities affecting the Veteran's left upper extremity below the deltoid insertion is 70 percent under Diagnostic Code 5122. Id. The Veteran was afforded a VA examination in March 2020. The Veteran reported that he had severe constant pain, severe intermittent pain, and severe paresthesias in his left upper extremity. The examiner indicated that the Veteran's radial, median, and ulnar nerves were affected. After an in-person examination and a review of the Veteran's claims file, the examiner provided a positive nexus opinion. The examiner explained that phantom pain is a well-known complication of amputation. The examiner also reported that doctors once believed that this post-amputation phenomenon was a physiological problem, but experts now recognize that these real sensations originate in the spinal cord and brain. The Board finds the Veteran's presentation of evidence with respect to his phantom limb pain to be highly credible, and believes that this causes him impairment. However, 38 C.F.R. § 4.68, is dispositive on this matter, that the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level. Here, the Veteran had a left distal forearm amputation, below the insertion of the deltoid, and the total schedular rating for such a condition is 70 percent. Under 38 C.F.R. § 4.68, a rating in excess of 70 percent is precluded, for disabilities below the insertion of the deltoid. Consideration has been given to alternate means of accounting for the phantom limb pain, but as noted, the amputation rule is intended to contemplate the entirety of the loss due to amputation in one rating. Moreover, a schedular rating is already in effect for painful scars, and the Board will not disturb this favorable finding. As discussed, the Board has considered the positive evidence regarding this claim, which notably include the Veteran's credible description of phantom pains and the positive nexus opinion provided by the March 2020 VA examiner. However, even in consideration of the positive evidence in this case, a separate rating is precluded as a matter of law by the Amputation Rule. See 38 C.F.R. §§ 4.25, 4.68. In other words, the Board is bound by the regulations of the Department, instruction of the Secretary, and the precedent opinions of the General Counsel, see 38 U.S.C. § 7104 (c), as well as the laws of the United States and the precedent decisions of courts of superior jurisdiction. Those regulations simply do not allow for a separate rating for the Veteran's phantom pain. Consequently, the benefit-of-the-doubt rule does not apply, and service connection in terms of a separate rating must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, Associate 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.