Citation Nr: 22015545 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 20-28 727 DATE: March 18, 2022 ORDER Entitlement to a disability rating in excess of 70 percent for loss of use of the right upper extremity is denied. FINDING OF FACT The Veteran's loss of use of the right upper extremity has been assigned the highest schedular rating available under Diagnostic Code 5125; no extraordinary disability picture is presented. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for loss of use of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 4.7, 4.40, 4.45, 4.59, 4.71a, 4.73, Diagnostic Code 5125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1963 until January 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 Department of Veterans Affairs (VA) regional office rating decision. Increased Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to a disability rating in excess of 70 percent for loss of use of the right upper extremity The Veteran's right upper extremity disability is currently rated as 70 percent disabling under Diagnostic Code 5125. Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5125, and Note (f), a 70 percent disability rating is warranted for loss of use of the dominant or major hand. Note (f) specifically states that loss of use of the hand exists where there is no effective function remaining other than what would be served equally well by amputation of the hand with a suitable prosthetic. The rating criteria does not provide for a higher schedular rating for this disability. The question for the Board is whether the Veteran's right upper extremity disability warrants a disability rating in excess of 70 percent. In numerous lay statements, the Veteran generally asserts that this disability warrants a higher rating as he has "very limited use of arm," as it impacts his ability to individually perform activities of daily living. Specifically, he contends that he is "totally dependent" and "puts a lot of responsibility" on his wife to complete tasks such as feeding, washing, dressing, and working. At this juncture, the Board notes that the Veteran has already been awarded special monthly compensation (SMC) for the loss of use of one hand pursuant to 38 C.F.R. § 3.350(a) and a total disability rating based upon individual unemployability (TDIU) based on service-connected disabilities. A March 2017 VA shoulder examiner reported that the Veteran has severe pain and range of motion deficits; a March 2017 VA muscle examiner indicated that the Veteran has visible and measurable atrophy with loss of power, weakness, lowered threshold of fatigue, and impairment of coordination. Similarly, a June 2018 VA treatment record shows that he has difficulty walking due to shoulder pain and that he needs help with activities of daily living. A May 2021 VA shoulder examiner stated that the Veteran is completely unable to lift his right arm and that any movement would trigger sharp pain. The Board acknowledges the Veteran's multiple reports of difficulties resulting from the damage to his right shoulder and its impact on his ability to work and to function in his daily life. However, these symptoms are not sufficient to warrant assignment of a higher disability rating under the schedular rating criteria (none is available under Diagnostic Code 5125), nor are they outside the contemplated criteria such that an extraschedular disability rating would be appropriate. Regarding any potential schedular increase, importantly, the Veteran has not argued, and the evidence of record does not show, amputation of the right forearm, above insertion of pronator teres, to warrant changing the Code to one that contemplated a higher rating such as Diagnostic Code 5123. As such, Diagnostic Code 5125's sole 70 percent rating is the appropriate criteria in this case. The Board notes that the fact that a 70 percent disability rating has been assigned for the right upper extremity does not signify a perception that the loss of use in the right hand is only at a 70 percent level compared to full usage. Rather, the 70 percent is intended to represent the impact on the Veteran as a whole person, and on his earning capacity and ability to function as a result of the right upper extremity disability alone. 38 U.S.C. § 1155. Regarding any extraschedular referral, the threshold element, "an exceptional disability picture," is met where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). However, the Board finds that the rating criteria adequately contemplate the disability in question. Based on the evidence of record, the Board finds that the severity and symptomatology of the Veteran's service-connected disability are reasonably contemplated by the diagnostic criteriaindeed, the evidence listed above supports the conclusion that the Veteran has the loss of use of his right upper extremity satisfying the 70 percent criteria under Diagnostic Code 5125. As such, the Board finds that the Veteran does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted. Furthermore, to the extent that the Veteran argues that he is entitled to TDIU or SMC for these complications, they have already been awarded. For the reasons discussed above, a 70 percent rating under Diagnostic Code 5125, along with awards of TDIU and SMC, most properly reflect the severity of the Veteran's right shoulder disability. The claim for an increased disability rating is denied. 38 C.F.R. § 4.71. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.