Citation Nr: 21042278 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-34 599 DATE: July 12, 2021 ORDER 1. Entitlement to a compensable disability rating for the service-connected fractured ribs is denied. 2. Entitlement to a 10 percent, but no higher, disability rating for the service-connected fracture of the right fifth finger is granted. 3. Entitlement to a compensable disability rating for the service-connected right thoracic muscle group XXI injury is denied. FINDINGS OF FACT 1. The probative evidence of record does not show removal of one rib or the resection of two or more ribs without regeneration. 2. The probative evidence of record is at least in equipoise as towards whether pain from the Veteran's finger condition alone caused functional loss. 3. The probative evidence of record does not show that the Veteran's right thoracic muscle group XXI injury is moderate or severe in nature. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for fractured ribs have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.72, Diagnostic Code (DC) 5297. 2. The criteria for a 10 percent rating for fracture of the right fifth finger have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.72, DC 5230. 3. The criteria for a compensable rating for a right thoracic muscle group XXI injury have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.72, DC 5231. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to June 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2015 and May 2017 rating decisions. In October 2019, the Board issued a remand in order for a supplemental statement of the case (SSOC) to be provided. A SSOC was issued in September 2020. As such, there has been substantial compliance with Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Entitlement to a compensable disability rating for residuals of fractured ribs The Veteran's service-connected residuals of fractured ribs disability is rated as noncompensable (zero percent) under Diagnostic Code (DC) 5297. Under DC 5297, a 10 percent rating is warranted where there has been the removal of one rib or the resection of two or more ribs without regeneration. Higher ratings are warranted where multiple ribs are removed, up to a maximum rating of 50 percent where more than six ribs have been removed. Historically, the Veteran was granted service connection for fractured ribs at a noncompensable rating with an effective date of May 23, 2006. In July 2015, he submitted a claim for an increased rating. In making his claim, the Veteran stated that he was in constant pain from the smallest amount of normal activities, such as from twisting his waist to pick up a newspaper. See July 2015 VA 21-4138. The Board has considered all evidence up to one year prior. The Board notes that, in January 2014, the Veteran denied any chest pains. See October 2019 CAPRI, p. 123. In September 2015, the Veteran was afforded a VA examination. He reported sustaining blunt injury from a wave while swimming in the ocean in 2005, resulting in 6th-7th rib fractures resulting in chronic pain. The examiner did not identify any edema, discoloration, or inflammation upon physical examination of the Veteran. The Veteran's torso was nontender to palpation, and there was no evidence of crepitus. He did not exhibit pain or difficulty with respiration. A May 2013 chest x-ray revealed well-healed fractures of 6th-7th ribs. The functional impact of the Veteran's disability was "pain with lifting, pushing, [and] pulling." See September 2015 VA Examination. The RO denied the Veteran's claim in September 2015 and he submitted a timely notice of disagreement (NOD) in October 2015. In December 2016, an addendum opinion was obtained in which a VA examiner indicated the September 2015 VA examiner mistakenly diagnosed left ribs instead of right ribs. The December 2016 examiner stated, "[t]he correct diagnosis is healed right rib fracture and right group XXI thoracic muscles of respiration injury residuals." See December 2016 C&P Exam. A statement of the case (SOC) was provided in May 2017 explaining the denial of the Veteran's claim. The Veteran responded with a VA Form 9 in June 2017, perfecting his appeal. Another VA examination was provided in August 2019. The Veteran was diagnosed with residuals of fractured ribs of the right side, which caused right flank pain and difficulty taking a deep breath. The Veteran stated that strenuous movements, such as mowing his lawn, caused pain. No flareups were reported and the VA examiner opined that "[t]he Veteran's ability to work or daily activities are not impacted due to a bone/claimed condition." See August 2019 C&P Exam. The Board issued a remand decision in October 2019 instructing that a supplemental statement of the case be provided. A SSOC was issued in September 2020. The Veteran's representative submitted an appellate brief in June 2021 stating that there were no additional arguments. The claim is now before the Board. The Board has reviewed the Veteran's medical record. The medical evidence of record does not show that there has been the removal of one rib or the resection of two or more ribs without regeneration. As such, a compensable rating under DC 5297 is not warranted. However, the Board is mindful of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. Therefore, the Board has considered whether the Veteran's pain alone is sufficient to affect earning capacity. In the present case, the Veteran retired in 2003. See October 2009 CAPRI, p. 143. He stated that he worked as a cargo specialist until January 2011. See May 2019 VA 21-8940. Here, the probative evidence of record shows that the Veteran suffers from pain when performing strenuous movements. The record does not show that pain alone has caused an inability to perform daily functions. While the Board acknowledges the Veteran's lay statements classifying his pain as being severe from the smallest of movements, this level of severe pain is not supported by the medical record or the Veteran's subsequent lay statements. Specifically, at his August 2019 VA examination, the Veteran has reported that he treats his pain with "occasional ibuprofen" and that pain came about from strenuous movements. A careful look at the Veteran's medical treatment records likewise did not show complaint, treatment or diagnosis of severe pain due to the Veteran's rib condition, nor does it show functional loss. As such, a compensable rating for pain alone is not warranted. Therefore, the criteria for a compensable rating under DC 5297 have not been met at any time during the appeal period. Further, there are no diagnostic codes that would more appropriately contemplate the Veteran's residuals of intermittent pain. As such, a compensable rating for fractured ribs is not warranted. Entitlement to a compensable rating for the service-connected fracture of the right fifth finger The Veteran contends that his service-connected fracture of the right fifth finger should be compensable. Service connection was granted at a noncompensable rate with an effective date of September 1976. In May 2006, the Veteran submitted a claim for an increased rating. The Board has considered all evidence up to one year prior. The Veteran's right finger disability has been assigned a noncompensable rating under DC 5230. DC 5230 provides a noncompensable rating for any limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, DC 5230. A compensable rating for the right little finger requires amputation, or the functional equivalent thereof. 38 C.F.R. § 4.71a, DC 5156. It must also be considered whether an additional evaluation is warranted for resulting limitation of motion of other digits, or interference with overall function of the hand. The Board notes that the Veteran has been rated at 10 percent for right index finger trauma with painful motion as of May 24, 2019. The Veteran's range of motion is rated under DC 5229, which provides that a noncompensable (zero percent) evaluation is warranted for limitation of motion of the index finger or the long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. An evaluation of 10 percent under DC 5229 requires limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. As 10 percent is the maximum rating allowed, the Board will only consider if a rating was warranted prior to May 24, 2019. As stated above, the Veteran submitted a claim for an increased rating in July 2015. A VA examination was provided in September 2015. Upon examination, the Veteran's finger was not found to require amputation or the equivalent thereof. No gap was found between the pad of the thumb and fingers, nor was a gap found between the finger and proximal transverse crease of the hand on maximal finger flexion. No dizziness or staggering was found. The functional impact of the disability was "grasping functions of R 5th finger causes pain." See September 2015 C&P Exam. In August 2015, the RO continued the Veteran's compensable rating and, in October 2015, the Veteran submitted a timely NOD. In it, the Veteran stated that his finger sometimes caused pain that went down past his wrist and partially up his arm, with medication taken due to the pain. An SOC was provided in May 2017 and the Veteran responded with a timely VA Form 9 in June 2017. In September 2019, the Veteran had an accident with a circular saw, which took off part of his index finger. His finger was subsequently reattached. An attending note stated that "the patient has mostly lost function of his right hand." See September 2020 CAPRI, p. 21. A VA examination was subsequently provided in August 2019. Upon examination, the Veteran's symptoms were found to be "[i]ncreased pain with any movement. Numbness in the index finger, side of the thumb and the tips of all the other fingers. Decreased ROM. Shooting pain up the right arm. Weakness in arm and hand." The Veteran stated, "I can't do anything with my right hand the pain is too intense. I can't even do work around my house." Pain was found on finger flexion, extension, and opposition with thumb, with the Veteran wincing on movement and palpation. The examiner found the Veteran's symptoms to be "moderate to severe" because of the Veteran's injury and surgical repair. No gap was found between the pad of the thumb and the fingers. The VA examiner did not find that functioning was so diminished that amputation with prosthesis would equally serve the Veteran. See August 2019 C&P Exam. The Board then issued a remand decision in October 2019, instructing that an SSOC be provided. As per Board remand orders, an SSOC was issued in September 2020. The Veteran's representative sent an appellate brief in June 2021, stating that there were no additional arguments to make. The claim is now properly before the Board. A review of the Veteran's medical treatment records, including up to a year prior to the date of claim, does not show any evidence that would contradict the findings of the VA examinations of record. As the Veteran's finger has not been found to require amputation, or the functional equivalent thereof, a compensable rating under DC 5230 is not warranted. Likewise, a review of the record does not show that prior to May 24, 2019 that the Veteran's finger required limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. As such, a compensable rating under DC 5229 is likewise not applicable. Finally, in consideration of DeLuca, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. A review of the record shows that, due to pain alone, the September 2015 VA examiner found that there was functional loss in the form of "grasping functions of R 5th finger causes pain." To this end, the Board notes that, at the August 2019 VA examination, the Veteran explained the injury he suffered in which his finger was amputated happened because pain from gripping in his right hand caused him to use the saw with his left hand. The Board finds the Veteran's testimony to be credible. Given the above, the Board finds that pain alone inhibited the Veteran's normal working movements, and thus the maximum schedular rating of 10 percent is warranted. See DeLuca, 8 Vet. App. 202. Entitlement to a compensable rating for a right thoracic muscle group XXI injury The Veteran's muscle condition is rated as noncompensable under DC 5321, which indicated that a "slight" injury warrants a noncompensable evaluation, a "moderate" injury warrants a 10 percent rating, and a "moderately severe" or "severe" injury warrants a 20 percent rating. 38 C.F.R. § 4.73, DC 5321. The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule but are given context in 38 C.F.R. § 4.56(d)(1)-(4). Rather than applying a mechanical formula, VA must evaluate all the evidence. 38 C.F.R. § 4.6. Use of terms such as "slight" and "moderate" by physicians is not dispositive of a legal issue, although use of these terms is considered by the Board. All evidence must be considered in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports or analyses. 38 C.F.R. § 3.159(a)(1). Lay statements are qualified to establish that an event or circumstance occurred if the statements are provided by a person who has personal knowledge of and provides information about matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In July 2015, the Veteran submitted a claim of service connection for a right thoracic muscle group injury. A VA examination was provided in July 2015 for the Veteran's rib condition, which diagnosed the Veteran's thoracic injury and stated that there was "no acute intrathoracic abnormality." See September 2015 VA Examination. In December 2016, an addendum opinion was provided, in which a VA examiner found that the Veteran's thoracic injury was as likely as not due to his military service. In May 2017, the RO provided an SOC which incorrectly stated that the Veteran's noncompensable rating was continued and also sent a rating decision that granted the Veteran service connection for his muscle condition at a noncompensable rating. The Veteran submitted a VA Form 9 in June 2017. A second VA examination was provided in August 2019 for the Veteran's rib condition, in which his thoracic muscle injury was not noted. The Board accepted the Veteran's appeal in October 2019 and ordered a remand for an SSOC, which was provided in September 2020. The Veteran's representative sent an appellate brief in June 2021 in which the claim was rested on the arguments already made. A review of the Veteran's medical records has not uncovered any complaint or treatment for the right thoracic muscle group during the appellate period. Likewise, there is no lay evidence of record describing this injury or any impairment of function submitted by the Veteran. Rather, the only lay statement from the Veteran comes in the form of his June 2017 VA Form 9, in which he wrote "please reconsider the disability rating for both my finger and thoracic muscle group XXI." In the absence of any medical or lay evidence describing the Veteran's disability, the Board finds that there is insufficient evidence to classify the injury as either moderate or severe. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As it stands now, there is no basis on which to grant the Veteran's claim for a compensable rating. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.