Citation Nr: 21010459 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-37 062 DATE: February 24, 2021 ORDER An initial compensable rating of 10 percent, and no higher, for a painful scar left thigh wound is granted. An initial compensable rating a fracture fourth metacarpal (claimed as left-hand pain boxer’s fracture) is denied. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s left thigh scar wound is painful. 2. The competent and probative evidence is against finding any compensable symptoms attributable to a fracture fourth metacarpal (claimed as left-hand pain boxer’s fracture). CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating of 10 percent, and no higher, for left thigh scar wound are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes (DC) 7804, 7805. 2. The criteria for an initial compensable rating for residuals of fracture fourth metacarpal (claimed as left-hand pain boxer’s fracture) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1995 to May 1999. This matter comes before the Board of Veterans’ Appeal (BOARD) on appeal of a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). On January 7, 2020, a video conference Board hearing was held. A copy of the hearing transcript is associated with the claims file and has been reviewed. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. An initial compensable rating for a left thigh scar wound Diagnostic Codes 7800-7805 were revised, effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran’s case. Under the scar regulations in effect prior to and since August 13, 2018, Diagnostic Code 7800 provides ratings for scars of the head, face, and neck. The Veteran’s scars do not involve the head, face, and neck; thus, further discussion of Diagnostic Code 7800 is not necessary. 38 C.F.R. § 4.118. Pre-August 13, 2018, Diagnostic Code 7801 provides that scars of other than the head, face or neck that are deep and nonlinear are assigned ratings based on the area or areas of the scar(s). Effective August 13, 2018, Diagnostic Code 7801 was amended to remove characterization as “deep and nonlinear scars” which was replaced with characterization of scars with “underlying soft tissue damage.” Pre-August 13, 2018, Diagnostic Code 7802 provides a 10 percent rating for scars of other than the head, face or neck that are superficial and nonlinear if the area or areas of the scars is 144 sq. in. (929 sq. cm.) or greater. Id. Diagnostic Code 7802 was amended to remove “superficial and nonlinear” and was replaced with “not associated with underlying soft tissue damage. Diagnostic Code 7804 was unaffected by the revision of the rating criteria effective August 13, 2018. Based on either the old or new criteria, under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars 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. The Veteran is currently assigned a noncompensable disability rating under DC 7805 for a left thigh scar wound. The Veteran contends he is entitled to an initial compensable rating because his scar is painful. See May 30, 2018, Notice of Disagreement (NOD). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, a rating of 10 percent, but no higher, is warranted for the left thigh scar wound. During a May 2017 VA examination, the dimensions of this scar measured 2 by 2 centimeters. May 12, 2017, VA Examination. The examiner opined that the scar was neither unstable nor painful. The examiner noted that the scar did not result in any limitation of function and would not affect the Veteran’s ability to work. The Veteran contends that his scar is painful about three times a week depending on his workload. See May 30, 2018, Notice of Disagreement (NOD). The Veteran testified that due to the scar being located on the back side of his thigh, the frequency of pain varies with his positioning. See January 7, 2020, Hearing Transcript. Although the VA examiner opined that the scar was not painful, the Veteran is competent to report that his scar is painful as this requires only personal knowledge that comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The competent and probative evidence is at least in equipoise as to whether the left thigh scar wound is painful. An initial rating of 10 percent, but no higher, is warranted for one painful scar of the left thigh. See 38 C.F.R. § 4.118, DC 7804. A higher rating is not warranted under DC 7804 because the weight of the competent and probative evidence is against finding that the scar is unstable. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher or separate rating for the left thigh scar wound. See 38 C.F.R. § 4.118. The weight of the competent and probative evidence is against finding that the scar involves underlying tissue damage, covers an area or areas of 144 square inches or more, or causes any disabling effects not considered in a 10 percent disability rating under DC 7804. When a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The benefit of the doubt has been applied, where applicable. 2. Residuals of fracture fourth metacarpal (Claimed as left-hand pain boxer’s fracture) The rating criteria for the ring finger are set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 5155, 5227 and 5230. Diagnostic Code 5155 pertains to amputation of the fourth finger. A 10 percent rating is warranted for amputation of the fourth finger without metacarpal resection. A 20 percent rating is warranted for amputation of the fourth finger with metacarpal resection. Under Diagnostic Code 5227 a 0 percent rating is warranted for favorable or unfavorable ankylosis of the fourth or fifth finger. Under Diagnostic Code 5230, a 0 percent rating is warranted for any limitation of motion of the fourth or fifth finger. The Veteran contends that he is entitled to a compensable rating under Diagnostic Code 5230 because the fracture of his fourth finger results in stiffness and pain, making it difficult to operate equipment necessary to complete his construction job. See May 30, 2017, NOD. During a May 2017 VA examination, the examiner noted normal range of motion and normal strength with no ankylosis or atrophy. May 12, 2017, VA Examination. Pain was noted on examination, but the examiner opined it would not result in any functional loss. There was also no additional function loss of range of motion after three repetitions. The examiner explained that there was insufficient evidence or objective examination findings to reliable predict decreased functional ability during flare-ups or with repetitive use over a period of time without resorting to mere speculation. The examiner noted the Veteran statements that his hand condition did not limit his ability to drive, work with the keyboard and type; however, operating a chainsaw, grasping ropes and chains, and other repetitive fine motor movements, such as manipulating fishing items for a full day, caused pain. The examiner determined that the Veteran’s painful hand condition impacted his ability to perform physical job position activities such as grasping, holding, carrying and lifting. The examiner found that the hand condition impacted the Veteran’s ability to be successful at sedentary job positions but opined 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. The Veteran testified that he has problems with his hand four out of seven workdays. See January 7, 2020, Hearing Transcript; May 12, 2017, VA Examination. The Veteran explained that when his hand flares up, his hand gets inflamed, red and hot to touch. January 7, 2020, Hearing Transcript. When these flare ups occur, the Veteran further testified that he may try to take some time out briefly or have one of the other laborers help him. For relief of pain, the Veteran indicated that he performs stretches and takes aspirin. The Veteran also indicated that factors such as the weather and the type of work performed affect the frequency and severity of the pain. The Veteran and his representative challenged the adequacy of the May 2017 VA examination during the Board hearing. See January 7, 2020, Hearing Transcript. Specifically, the representative stated that “[t]he thing with repetitive use is where [he was] a little confused on the comp and pen exam.” The Veteran further testified that the examiner did not ask him to do anything and made him feel like he was an inconvenience. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the 2017 VA examination is deemed adequate for rating purposes and an initial compensable rating for a left fourth finger fracture is not warranted. Additionally, there is no evidence of bias in the examiner’s finding. The examiner acknowledged and considered all the Veteran’s lay statements and contentions, noting pain with use of the left hand, pain with repetitive use and functional loss as described by the Veteran. Even if it was found that the May 2017 VA examination did not adequately address the Section 4.40, Section 4.45, Section 4.49, DeLuca, and Mitchell criteria that form the basis of the objection by the Veteran and his representative, a remand for a new examination is not warranted 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 already in receipt of the maximum rating available for limitation of motion of the fourth 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. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (holding that there was no minimum compensable rating available for painful motion of the fourth finger as the general intent of section 4.59 to account for actually painful joints was trumped by Diagnostic Code 5230’s provision of a noncompensable rating for any limitation of motion). There is no evidence of ankylosis and, therefore, Diagnostic Code 5227 for favorable or unfavorable ankylosis of the ring or little finger is inapplicable. Diagnostic Code 5227 instructs the rater to consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. In this case, the preponderance of the evidence indicates that functional limitations associated with the Veteran’s left fourth finger fracture are not analogous to amputation, rated under Diagnostic Code 5155. The VA examiner opined that there was not functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Likewise, the preponderance of the evidence is against a finding that residuals of the left fourth finger fracture caused significant limitation of other digits or interfered with the overall functioning of the hand. Throughout the appeal period, range of motion was normal in all fingers, the disability never caused a gap between the pad of the thumb and fingers of the left hand, and strength testing was normal. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a compensable rating for residuals of left-hand fourth finger fracture. See 38 C.F.R. § 4.71a. As (Continued on next page) the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.