Citation Nr: 22012207 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 10-22 681 DATE: March 2, 2022 ORDER A disability rating greater than 10 percent for residuals of a left wrist injury is denied. A compensable disability rating for residual scar, left wrist, associated with residuals of left wrist injury, is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness and emergency surgery, pneumonia, and staph infection is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's left wrist disability has resulted in chronic pain and limitation of motion; however, it has not resulted in ankylosis or arthritis, and he has retained the ability to move his wrist. 2. The Veteran's linear left wrist scar has measured, at most, 6.0 cm by 0.2 cm, and has not been painful or unstable. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for residuals of a left wrist injury for the period on appeal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, DC 5215. 2. The criteria for a compensable disability rating for residual scar, left wrist, associated with residuals of left wrist injury, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7815 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served of active duty from September 1986 to July 1991. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and May 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ); a transcript of that hearing has been associated with the claims file. The Board previously remanded these claims in September 2016, January 2020, and September 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating greater than 10 percent for residuals of a left wrist injury for the period from February 4, 2011 onward The Veteran asserts that his left wrist disability is more severe than is reflected by his evaluation. The Veteran's left wrist disability is evaluated under DC 5215. DC 5215 is used for limitation of motion of the wrist. A 10 percent rating is warranted for palmar flexion limited in line with forearm or for dorsiflexion less than 15 degrees. A 10 percent rating is the highest rating available under DC 5215 for both the major and minor joint (dominant and nondominant), with the next higher rating coming under DC 5214 for ankylosis of the wrist, rated between 20 and 50 percent. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). While portions of the rating schedule addressing the musculoskeletal system were revised, this diagnostic code was not changed. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. During a May 1993 Persian Gulf War VA examination, the examiner reported that that the Veteran's left wrist had the following range of motion (ROM) measurements: 5 degrees for inversion and 30 degrees for extension. During a February 1998 VA examination, the Veteran reported pain in his left wrist on use and during cold temperatures, with decreased strength compared to the right wrist. His ROM measurements were as follows: Dorsiflexion to 70 degrees, Palmar flexion to 80 degrees, Ulnar deviation to 20 degrees, and wrist ulnar deviation to 45 degrees. The examiner noted that these all appeared normal. During the Veteran's January 2012 VA examination for wrist conditions, he was negative for painful motion or pain in the wrist during palpation of the joint. He was also negative for ankylosis. During his May 2013 Decision Review Officer (DRO) hearing, the Veteran reported that his left wrist was chronically painful, and his ROM was limited. During the Veteran's December 2015 VA examination for wrist conditions, he was negative for ankylosis or arthritis. His ROM was reduced; however, the Veteran was able to move his wrist in all four forms of tested ranges of motion. During the Veteran's March 2020 VA examination for wrist conditions, he was negative for ankylosis and arthritis. His ROM was reduced; however, the Veteran was able to move his wrist in all four forms of tested ranges of motion. During the Veteran's November 2020 VA examinations for hand and finger conditions and for wrist conditions, the VA examiner diagnosed the Veteran with left hand strain of the thumb, which caused pain during ROM. The examiner stated that there had been a worsening of the Veteran's symptoms; however, there was no change to his service-connected conditions, and no additional diagnoses had been rendered. He was negative for ankylosis and arthritis. His ROM was reduced; however, the Veteran was able to move his wrist in all four forms of tested ranges of motion. The Veteran's VA and private treatment records reflect treatment for his left wrist conditions; however, at worst, his left wrist disability is manifested by painful reduced range of motion. Despite the reduced range of motion, the Veteran was able to move his wrist in all four forms of tested ranges of motion. The Veteran has consistently asserted that his left wrist disability is more severe than is reflected by his current evaluation. While the Veteran is competent to observe his left wrist symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his left wrist symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the evidence of record persuasively favors finding that the Veteran's left wrist disability has not resulted in ankylosis or arthritis, and he is already in receipt of the maximum available rating under DC 5215. The Board has also considered whether Diagnostic Code 5214, pertaining to ankylosis of a wrist, is applicable; however, as there is ample evidence that the Veteran is still able to move both wrists, and he is negative for ankylosis, this Diagnostic Code does not apply. Accordingly, the Veteran's claim for an increased rating is denied. 2. Entitlement to a compensable disability rating for residual scar, left wrist, associated with residuals of left wrist injury, The Veteran asserts that his left wrist scar disability is more severe than is reflected by his current evaluation. The Veteran's service-connected scar is assigned a noncompensable rating under DC 7805. 38 C.F.R. § 4.118. DC 7805 instructs to evaluate scars under DC 7800, 7801, 7802, and 7804. Recently, VA amended the criteria for rating the skin. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). The amendments were made effective as of August 13, 2018. The Veteran is appealing the initial rating of his scar, which has an effective date of February 2011. As such, the Board will apply both the old and the new criteria, whichever is more favorable. The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. In this case, the changes to the relevant DC pertain only to the title of the scar codes and the notes following the codes. The amendments to DCs 7800 to 7805 do not affect the analysis in the current case. Prior to August 13, 2018, DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DC 7800, 7801, 7802, and 7804 under an appropriate diagnostic. 38 C.F.R. § 4.118. DC 7800 contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. As the Veteran's service-connected scar is located on his chest, a compensable rating is not applicable in this case. DC 7801 provides ratings for burns or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) are rated 10 percent. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent. 38 C.F.R. § 4.118. Note (1) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, DC 7801. DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm.) or greater. Note (1) provides that a superficial scar is one note associated with underlying soft tissue damage. Note (2) specifies that if multiply qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, DC 7802. DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Under the amended criteria which became effective on August 13, 2018, DC 7800 and DC 7804 were not changed. 38 C.F.R. § 4.118. DC 7801 now provides for burn scars or scars due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage. The rating criteria for this code remained the same. But Note (1) now reads as follows: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk. Note (2) now reads as follows: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118, DC 7801. Under the amended criteria which became effective on August 13, 2018, DC 7802 now provides for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. The rating criteria remained the same. But Note (1) now reads: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118, DC 7802. DC 7805 was amended in that the parentheses which noted that linear scars were included was removed. The title now provides for scars, other; and other effects of scars evaluated under DC 7800, 7801, 7802, and 7804. The rating criteria remained the same. 38 C.F.R. § 4.118, DC 7805. Under both the prior rating criteria and the amended rating criteria, entitlement to a compensable rating for a surgery scar is not warranted. During the Veteran's February 1998 VA examination, the VA examiner noted that there was a well-healed surgical scar, but no pain or instability was noted. During the Veteran's February 2012 VA examination for scars, the VA examiner noted one linear scar on the left upper extremity, which was neither painful nor unstable. During the Veteran's February 2015 VA examination for wrist conditions, the examiner noted that the scar was no longer visible and was quiescent. During the Veteran's March 2020 VA examination for wrist conditions, the VA examiner noted one linear scar that was neither painful nor unstable. The scar measured 6.0 cm by 0.2 cm. During the Veteran's November 2020 VA examination for wrist conditions, the VA examiner noted one linear scar that was neither painful nor unstable. The scar measured 5.5 cm by 0.2 cm. The Veteran's VA and private treatment records are negative for evidence that his scar has been painful, unstable, or different in size from the measurements provided in his VA examinations. The Veteran has not asserted that his scar is painful or unstable. The evidence of record persuasively favors finding that the Veteran's scar disability is composed of a single linear scar that is neither painful nor unstable. As the Veteran's scar does not meet any of the requirements for a compensable rating, a noncompensable rating is appropriate. 38 C.F.R. § 4.31. Based on these facts, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that while the record does reflect the Veteran is pursuing a claim for TDIU, the Veteran submitted a written withdrawal of his claim, which was received in May 2019. Additionally, there is evidence of him working during the period on appeal. See February 2019 VAMC Other Output/Reports. Based on these facts, the Board finds that the Veteran is not interested in pursuing a claim for TDIU at the time of this decision. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness and emergency surgery, pneumonia, and staph infection is remanded. In its September 2020 decision, the Board remanded this claim for a VA medical opinion. The Board directed the examiner to opine on the following question, "Is the Veteran's right eye blindness, emergency surgery, pneumonia, and/or staph infection, a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment in September 2006?" In a July 2021 VA medical opinion, the VA examiner addressed the Veteran's right eye blindness and emergency surgery, but their opinion did not discuss his pneumonia or staph infection. Based on these facts, the Board finds that this claim must be remanded for substantial compliance with its September 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Forward the claims file, including a copy of this remand, to a clinician with the appropriate expertise for an opinion regarding the Veteran's claim for entitlement to benefits pursuant to 38 U.S.C. § 1151. If the examiner determines that an examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The examiner should opine on the following: (a) Is the Veteran's right eye blindness, emergency surgery, pneumonia, and/or staph infection, a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment in September 2006? (b) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (c) Was the proximate cause of the Veteran's right eye blindness, emergency surgery, pneumonia, and/or staph infection an event not reasonably foreseeable? In formulating their opinion, the examiner must consider all competent lay and medical evidence of record, including: (i) The Veteran's VA medical records from September 2006 to the present; (ii) The Veteran's medical records from Gwinnett Hospital System; (iii) A November 2006 Vision Impairment Residual Functional Capacity Questionnaire; and (iv) The Veteran's competent lay statements regarding the onset and continuity of his symptomatology and his first-hand experience with VA medical treatment from September 2006 forward. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.