Citation Nr: 22010909 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-16 197 DATE: February 24, 2022 ORDER Entitlement to a rating in excess of 10 percent for service-connected traumatic arthritis of the right wrist (excluding periods of temporary total disability pursuant to 38 C.F.R. § 4.30) is denied. Entitlement to a rating in excess of 10 percent for a service-connected scar on the right wrist effective October 9, 2014 is denied. REMANDED Entitlement to a rating in excess of 30 percent for service-connected residuals of a right thumb status-post tendon repair with degenerative changes is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appellate period, excluding periods of temporary total disability pursuant to 38 C.F.R. § 4.30, the Veteran's arthritis of the right (major axis, dominant upper extremity) wrist has been assigned a 10 percent evaluation, the maximum evaluation authorized under Diagnostic Code 5215 for loss of range of motion in a dominant wrist not manifesting in ankylosis, and his disability does not present an exceptional disability picture so as to warrant referral of this claim for extraschedular consideration. 2. Starting on October 9, 2014 and thereafter throughout the period on appeal, there is no competent or credible evidence to suggest that the Veteran has more than the one painful scar at his right wrist that is already service connected; meanwhile, the evidence of record is persuasively against a finding that this one painful scar at the right wrist measures more than 77 squared centimeters (sq. cm.) or otherwise results in any other disabling effects. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for service-connected traumatic arthritis of the right wrist (excluding periods of temporary total disability pursuant to 38 C.F.R. § 4.30) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87, Diagnostic Code 5215. 2. The criteria for entitlement to a rating in excess of 10 percent for a service-connected scar on the right wrist effective October 9, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7. 4.71a, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1981 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 17, 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's March 2017 VA Form 9 included a request for a Board videoconference hearing. In a May 2019 statement in support of claim, the Veteran stated that he no longer wanted a Board hearing. As such, his hearing request is deemed to have been withdrawn. In a March 2017 rating decision, the RO increased the Veteran's right wrist scar from noncompensable to 10 percent, effective October 9, 2014. This resulted in a staged rating. Inasmuch as a higher rating is available and the Veteran has not indicated satisfaction, the claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). On the other hand, the initial noncompensable rating for the right wrist scar disorder prior to October 9, 2014 was finally adjudicated on September 17, 2021. As such, that portion of the claim is no longer in appellate status. In a May 2015 VA 21-8940, the Veteran raised the issue of entitlement to a TDIU, and it has since been included in the current appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The claims on appeal were previously before the Board on December 31, 2019 and September 17, 2021. The claims listed on the title page were remanded, and the Veteran was then issued a Supplemental Statement of the Case (SSOC) on November 5, 2021. The Board accordingly reasserts jurisdiction of what was remanded in September 2021, but the other issues that were adjudicated at that time are no longer in appellate status. Increased Rating Disability evaluations are determined by the application of the facts presented to the 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. § 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. at 119, 126-27 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. 1. Entitlement to a rating in excess of 10 percent for service-connected traumatic arthritis of the right wrist (excluding periods of temporary total disability pursuant to 38 C.F.R. § 4.30) is denied. The Veteran seeks increased ratings for his right wrist disorder. Except for one period of temporary total disability under 38 C.F.R. § 4.30 lasting from May 28, 2015 until prior to September 1, 2015, this disorder has been continuously rated as 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5215. That temporary total disability portion of the claim is dismissed, because there is no rating in excess of 100 percent for the disorder while a maximum grant of the benefit sought was already in effect. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should eb terminated for lack of legal merit or entitlement). The Board previously reasoned that even if the Veteran has a maximum rating under Diagnostic Code 5215, the Veteran is credible to assert that his disorder has increased in severity, see Snuffer, supra, and other applicable diagnostic codes can yield a more advantageous rating, see Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). As such, the claim was remanded and it remained on appeal, because the Veteran is presumed to seek the maximum available benefits. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board does not impugn the Veteran's testimony that his symptomatology has become more severe during the appellate period. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the Veteran was afforded an updated examination, see Snuffer, supra, it was duly performed, and the results are associated with the claims file. The Board concludes that it is adequate and affords the Veteran substantial compliance with all previous remand directives. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Stegall, supra; VA Exam ( Nov. 3, 2021 ). While the Board acknowledges that the claim for increased ratings for the right thumb is to be remanded, the right wrist appears to have a maximum rating throughout the remainder of the appellate period for not manifesting in ankylosis. As such, this claim for an increased rating for the right wrist (not any finger) should be denied, because any remand is not reasonably likely to yield any additional benefit. See Soyini, supra; Sabonis, supra. The Veteran denied flare-ups of the right wrist; therefore, there can be no prejudice of failure to estimate their effects in terms of additional range of motion lost in terms of degrees. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); VA Exam, supra, at Questions Nos. 2B and 3D. Range of motion was thoroughly tested of both wrists, i.e.: the damaged right wrist on appeal and the undamaged opposite left wrist; therefore, the Board concludes that the AOJ complied with Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint). Range of motion measurements of the right wrist were such to preclude a finding of ankylosis, and ankylosis was also separately denied by the examiner. See VA Examination, supra, at Questions Nos. 3C and 5. With no ankylosis of the wrist, Diagnostic Code 5214 does not apply. There is no remaining applicable diagnostic code for the wrist. 38 C.F.R. § 4.71a. Instead, the only applicable diagnostic code is Diagnostic Code 5215, and the Veteran receives a maximum schedular rating throughout the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, supra. The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Alternatively, even if the disorder has become measurably more severe in further limiting the Veteran's range of motion of his right wrist, the evidence of record persuasively concludes that the wrist is not subject to ankylosis, which, in this case, simply means that any progression is not so severe that a rating in excess of 10 percent is warranted. Therefore, assigning a staged rating is not warranted. The Veteran and/or his representative has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, supra. To the extent any remaining claim for an increased rating for traumatic arthritis of the right wrist is still on appeal, a rating in excess of 10 percent for the disorder aside from one period of temporary total disability is not warranted and that the evidence of record is persuasively against such a claim. Therefore, the benefit of the doubt doctrine is not applicable in such regard and his higher rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to a rating in excess of 10 percent for a service-connected scar on the right wrist effective October 9, 2014 is denied. On September 17, 2021, the Board denied the Veteran's claim for a compensable rating at any time prior to October 9, 2014 for his scar on the right wrist, but the Board remanded the claim in excess of 10 percent thereafter. The Veteran and his representative generally assert that he is entitled to higher ratings; however, there are no particular arguments as to why such higher ratings should be warranted for the scars. In short, the Veteran's right wrist was afforded an updated examination, as detailed above. See Snuffer, supra. This examination suggested that the Veteran actually does not have any scars on his right wrist; however, for a rating in excess of the 10 percent already awarded, the Veteran would have to have more than two painful scars, or else the scars would have to measure at least 77 sq. cm. with underlying soft tissue damage, or else measure at least 929 sq. cm. without underlying soft tissue damage. There is simply no competent or credible evidence to suggest that a rating in excess of 10 percent is warranted, as none of the above appears to apply to the Veteran's claim. As such, the claim should be denied. The scar has been given a 10 percent rating since October 9, 2014. In the interim, VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ 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 a result, the Board shall consider both the old regulations (prior to the August 13, 2018 amendments) and new (as amended effective August 13, 2018) in rating the Veteran's disorder; however, if the new regulations should prove to be more advantageous to the Veteran, then it cannot be effective prior to August 13, 2018. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Diagnostic Code 7800 deals with scars of the head, face, or neck and is not applicable to this claim. Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (former code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the former code, a "deep scar" is defined as one associated with underlying soft tissue damage. Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (former code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. Under the former code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. Under both the former and amended criteria, Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. It does not appear to be controverted that as of 2020, the date of a VA examination of record, the Veteran had but one scar at the right wrist, and that that one scar measured 5.0 sq. cm: 10 cm long by 0.5 cm wide. See generally C&P Exam (Feb. 13, 2020), at Questions Nos. 1-2; VSO IHP (Oct. 30, 2020). The Veteran articulated a belief that "the scar is painful and unstable[; t]hus, an increase is warranted." See VSO IHP, supra, at Page 4. Nonetheless, the claim was remanded in September 2021, because as an updated examination was warranted for the right wrist, and as new treatment records needed to be associated with the claims file, the Board would have been precluded from adjudicating the claim for the scar. The Board now concludes that the Veteran has been afforded substantial compliance with the previous remand directives as pertaining to his one painful scar on the wrist. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Alternatively, any further remand would not be reasonably likely to confer any additional benefit upon the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board confirms that updated VA medical records were associated with the claims file, see VA Medical Records (rec'd Sept. 30, 2021), and there is no competent or credible evidence to suggest a rating in excess of 10 percent is warranted. See id. (Sept. 24, 2020) ("well-healed surgical incisional scar over dorsal aspect of right wrist/hand"); C&P Exam (Nov. 3, 2021), at Question No. 7 (denying the presence of scars on the right wrist). In this case, while the Board is empathetic to the Veteran's contention that his one painful scar may exhibit more subjective pain, the Board cannot escape the conclusion that after fully and sympathetically developing the claim on the theory that his scar residuals were more severe, he does not have more than two scars at the right wrist, and his scarring there has never measured more than 77 sq. cm. at any time during the appellate period. Rather, the evidence indicates that at most, the Veteran has one painful scar on his right wrist measuring 5.0 sq. cm. This appears to be adequately compensated by the current 10 percent rating. Meanwhile, a rating in excess of 10 percent is not warranted based upon the evidence of record, and the 10 percent rating that the Veteran is awarded under Diagnostic Code 7805 is more advantageous than any rating that could be yielded by any other applicable appropriate diagnostic code. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). Furthermore, the Board is unable to locate evidence of any other disabling effects for the Board's consideration. Finally, the Board has also considered whether staged ratings are appropriate in this case; however, the Board finds that the disability was stable throughout the appeal period and did not more nearly approximate any higher rating in excess of 10 percent at any time. For all of the above reasons, there is no entitlement to a rating in excess of 10 percent at any time since October 9, 2014 for the Veteran's one painful scar (at most) of the right wrist with no underlying soft tissue damage and that measures 5.0 sq. cm. There is no more reasonable doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for service-connected residuals of a right thumb status-post tendon repair with degenerative changes is remanded. As previously recounted, the claims were remanded in September 2021 so that the AOJ could associate new VA treatment records with the claims file, see Bell v. Derwinski, 2 Vet. App. 611 (1992), and readjudicate the appeal for an increased rating for the right thumb (currently rated 30 percent disabling) in light of the updated wrist examination and any updated findings about the scar or thumb from new medical records. The most recent VA medical records, as associated with the claims file after the September 2021 remand, indicate at least one instance of an abnormal scapholunate ligament, "with a wide gap between the scaphoid and lunate, likely torn." See VA Medical Records ( Sept. 24, 2020 ) (rec'd Sept. 30, 2021). Despite this finding, the AOJ only conducted an updated examination, see Snuffer, supra for the right wrist after the September 2021 remand. On the other hand, in February 2020, the Veteran was afforded an examination concentrating on the hand and fingers and concentrating on peripheral nerve conditions, in order to properly develop the claim for increased ratings for the right thumbbut these examinations were not updated after September 2021 despite the above-identified medical record. In this circumstance where at least one post-remand VA medical record suggests that the examinations administered in February 2020 should have been updated, see Snuffer, supra, the Board concludes that a remand is required so that the Veteran can be afforded those examinations, as well as substantial compliance with the previous remand directives as pertaining to developing his claim for increased ratings for the right thumb. See Stegall, supra. 2. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. The TDIU claim is inextricably intertwined with the increased rating claims being remanded herein, as the outcome of these claims may impact the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, adjudication of the TDIU claim must be deferred. The matters are REMANDED for the following action: 1. Schedule the Veteran for all necessary VA examinations to determine the current nature and severity of his right thumb disability, including but not limited to examinations of "hand and fingers" and "peripheral nerves conditions" to update examinations performed in February 2020. The claims file should be made available to and reviewed by the examiner. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, estimate range of motion during flare-ups or repetitive use. If the examination does not take place during a flare-up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and provide the extent of motion loss described in terms of degrees based upon the lay and medical evidence of record. All findings should be reported in detail. 2. Thereafter, readjudicate the claims on appeal for increased ratings for the right thumb and the intertwined claim for a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. J .Smith Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.