Citation Nr: 22013742 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-40 671 DATE: March 10, 2022 ORDER Entitlement to service connection for the Veteran's cause of death for the purpose of Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1310 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a temporary total evaluation for the right wrist/hand scar is denied. Entitlement to an initial compensable rating for a post-surgical scar associated with right wrist/hand carpal tunnel syndrome (CTS) is denied. FINDINGS OF FACT 1. The evidence is at least in approximate balance that the Veteran's service-connected right wrist/hand CTS contributed to his death. 2. During the appeal period, the evidence is not in approximate balance, but persuasively against a finding that the Veteran underwent surgery related to his service-connected right wrist/hand CTS. 3. The evidence is not in approximate balance, but persuasively against a finding that the Veteran's post-surgical scar associated with right wrist/hand CTS was unstable or painful or that it was manifested by worse impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 2. The criteria for entitlement to a temporary total evaluation for the right wrist/hand have not been met. 38 C.F.R. § 4.30. 3. The criteria for entitlement to a compensable rating for right wrist/hand CTS scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to June 1987. He passed away in October 2015, and his surviving spouse has been properly substituted as the Appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2015 and August 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). The Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. A transcript of that hearing has been associated with the claims file. Cause of Death Claim A veteran's surviving spouse is eligible for DIC benefits when a qualifying veteran dies from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). 1. Entitlement to service connection for the cause of the Veteran's death The Appellant is claiming service connection is warranted for the cause of the Veteran's death and that she is entitled to DIC benefits under 38 U.S.C. § 1310. The Appellant has indicated that in October 2015, while her husband was sitting on the couch, he reached behind him to pull out a gun that was wedged between his back and the couch. See Statement Received May 2016. She stated the Veteran reached for the gun with his right hand, that he has difficulty grasping objects due to his service-connected right wrist/hand, and that the gun accidentally discharged, causing the Veteran to die. See id. Private treatment notes confirm the Veteran experienced difficulty grasping objects and weakness in his right hand due to his service-connected right wrist/hand CTS. The record contains the official police report and shows that in October 2015, police responded to the Veteran and Appellant's house following a 911 call from the Appellant. The Veteran was on the couch and had suffered a self-inflicted gunshot wound which entered the right side of his back and exited to the left of his belly button. Efforts to revive him were unsuccessful and he died at the scene. The investigating officer indicated that given the location of the wounds, weapon location of shell casing, bullet (and trajectory) and patterning on clothing, along with no signs of a struggle or disturbance that it appeared the Veteran accidentally discharged the weapon, shooting himself in the back. The investigating officer further noted that he was unable to say whether the Veteran had any of his fingers or thumb inside of the trigger guard or whether material from the blanket (which was on the couch at the time the Veteran shot himself) was in the trigger guard, disabled the pressure safety, and the weapon discharged while the Veteran merely adjusted the weapon within the blankets or on the couch. The initial death certificate lists the immediate cause of death as pending and notes suicide as a possible cause. An amendment from the coroner corrected the death certificate to remove suicide as a possible cause and replaced it with "could not be determined." The Appellant submitted an August 2021 opinion from a clinical lab scientist (CLS) who indicated the understanding that the Veteran had right wrist/hand CTS and that he used his dominant (right) hand to grasp a gun from behind him while sitting on the couch, which went off and shot the Veteran in the back, exiting the front. The CLS stated that the police report reads that photos of the couch the Veteran was on when he was shot and that the upper left part of the backrest of the couch had blood due to the blowback from the gunshot wound and noted that the coroner made the statement in the report that the place the Veteran shot himself is "very odd." The CLE further pointed out that the same report stated there was not enough information to make a definitive determination as to the manner of death. Based on the foregoing, the CLS opined the evidence is in at least approximate balance that the Veteran's lack of control due to his service-connected right wrist/hand CTS contributed to the gunshot wound, and therefore, contributed to his death. Based on the foregoing, the Board finds the evidence is at least in approximate balance that the Veteran's right wrist/hand CTS contributed to his cause of death, and therefore, the Appellant is entitled to DIC benefits under 38 C.F.R. § 1310. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 2. Entitlement to a temporary total evaluation for the right wrist/hand VA received the Veteran's claim for a temporary total evaluation for his right hand/wrist on April 14, 2014. Under 38 C.F.R. § 4.30(a)(1), a total rating is provided where treatment for a service-connected disability results in surgery necessitating at least one-month convalescence. The regulation provides for a temporary total rating for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Historically, the Veteran underwent right wrist release of an entrapped nerve in 1989. The Veteran has claimed that he believes a 100 percent rating is warranted from 1987 to 1989 because doctors could not figure out what was wrong with his hand at that time and, therefore, he should be rated 100 percent disabling at that time. See June 2015 Notice of Disagreement. The Appellant testified at the July 2021 hearing that the Veteran underwent bilateral wrist surgery in 2012. Significantly, a January 2015 VA wrist examination notes that the Veteran underwent right wrist CTS release on October 4, 2012. A March 2014 private treatment note documents the Veteran's past surgical history, per his and his wife's report, and notes he underwent bilateral CTS surgery in 2013. Private medical records dated October 4, 2012, document that the Veteran underwent a left CTS release with ulnar nerve decompression at the wrist. A January 2013 private treatment record reflects the Veteran was approximately three months status post left CTS release. Initially, the Board notes that the Veteran the claim for a total temporary evaluation is, in essence, similar to a claim for an increased rating with regard to the period on appeal and any potential effective date assigned. In pertinent part, VA regulation provides that an effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Here, while the Veteran has argued that he should be awarded a temporary total evaluation from 1987 to 1989, this falls outside the one year "look back" period outlined above. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Moreover, the evidence does not reflect the Veteran underwent right wrist surgery in October 2012, but rather, underwent left wrist surgery; however, even if it was shown he underwent right wrist surgery then, which it is not, as the claim for increase was received on April 14, 2014, any surgery that took place in 2012 is also outside of the one year "look back" period. See id. Although a March 2014 private record indicates the Veteran underwent bilateral wrist surgery in 2013 with Dr. D., as noted above, this was per the Veteran and his wife's report. Rather, accompanying medical records from Dr. D. and that private practice reflect the Veteran underwent left wrist surgery in 2012 and do not document any right wrist surgeries throughout the appeal period up until his death in October 2015. Further, at the hearing the Appellant's representative acknowledged that VA did not have any medical evidence of right wrist surgery after 1989. The Board finds that medical documentation of surgery (or lack thereof) is more probative than a history provided by the Veteran and Appellant which is then recorded on a medical progress note. As there is no probative evidence that the Veteran underwent surgery for his service-connected right wrist/hand CTS throughout the appeal period, it follows that there is no associated period of convalescence, and the claim must be denied as a matter of law. See 38 C.F.R. § 4.30(a)(1). 3. Entitlement to a compensable rating for a post-surgical scar associated with right wrist carpal tunnel syndrome is remanded. In a January 2015 rating decision, the RO granted service connection for a right wrist/hand scar associated with status post CTS release and assigned an initial noncompensable evaluation under Diagnostic Code 7804. The Appellant claims a compensable rating is warranted. Historically, the Veteran underwent right wrist release of an entrapped nerve in 1989. A January 2015 examination notes that the Veteran had a right anterior wrist scar measuring 6 centimeters (cm) in length and 0.25 cm in width. In a May 2015 statement, the Veteran indicated his scar was 2 inches long, not 0.2 inches. The Board notes that 6 cm. is equivalent to more than 2 inches and that this may have been where the confusion sprang from. At the July 2021 hearing, the Veteran's representative asked the Appellant if the Veteran ever complained about the scar being tender if the Veteran bumped into it and she responded that she knew he couldn't do much with his hand and that it was wrapped most of the time in a hand brace. When asked if she ever accidentally touched the scar and he reacted to it the Appellant said no and that he always wore a hand brace. The criteria pertaining to scars are found under Diagnostic Codes 7800 through 7806. 38 C.F.R. § 4.118. Diagnostic Code 7804 pertains to scars which are unstable and painful. 38 C.F.R. § 4.118. Under this diagnostic code, a 10 percent rating is warranted for one or two scars that are unstable or painful. Id. A 20 percent rating is warranted for three to four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rating criteria provide that 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Here, the evidence is not in approximate balance, but persuasively against a finding that the Veteran's scar was unstable or painful. To the extent that the Appellant indicated the Veteran had trouble using his right hand/wrist, this has been contemplated in the rating for right wrist/hand CTS. Neither the Appellant nor the Veteran ever described his scar as manifested by frequent loss of covering of the skin or by pain/tenderness. Accordingly, a compensable rating is not warranted. The Board has considered other applicable diagnostic codes and finds they are not for consideration. Diagnostic Code 7800 pertains to burn scars or disfigurement of the head, face, and neck, and is not applicable in this case given the location of the Veteran's scar. See 38 C.F.R. § 4.118. Diagnostic Code 7801 is also inapplicable as a compensable rating under this code requires underlying soft tissue damage and there is no evidence of this damage. See id. A compensable rating under Diagnostic Code 7802 is also not applicable because a compensable rating under this code requires the scar cover 144 square inches or greater, which the evidence does not reflect (even assuming the Veteran's May 2016 statement that his scar is larger). See id. Diagnostic Code 7803 has been removed from the rating criteria. Diagnostic Code 7805 instructs raters to evaluate any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 under the appropriate diagnostic code. 38 C.F.R. § 4.118. The record does not demonstrate there are any other disabling effects not already considered. See id. Finally, Diagnostic Code 7806 is not applicable as a compensable rating under that code requires, at minimum, characteristic lesions involving at least 5 percent, but less than 20 percent of the entire body or exposed areas affected; intermittent systemic therapy; or use of other immunosuppressive drugs, which has not been shown. See id. Based on the foregoing, the Board finds a compensable rating is not warranted for a right wrist/hand CTS scar. A higher rating is not warranted as the evidence is not in approximate balance, but persuasively against a finding that the Veteran's scar was manifested by worse impairment. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.