Citation Nr: 22016089 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-06 665 DATE: March 21, 2022 ORDER Entitlement to an increased rating of 50 percent, but no higher, for a left forearm condition is granted. Entitlement to an increased rating of 20 percent, but no higher, for left ulnar neuropathy granted. Entitlement to an initial compensable rating for a left elbow scar is denied. Entitlement to a compensable rating for bilateral hearing loss (BHL) is denied. REMANDED Entitlement to service connection for residuals of a lip/facial cancer is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection right lower extremity neuropathy is remanded. Entitlement to an effective date earlier than October 11, 2018 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left forearm condition is manifested by ankylosis and he is unable to supinate his left forearm. 2. The Veteran's left ulnar neuropathy is manifested by moderate symptoms. 3. The Veteran's left elbow scar is not painful or unstable, has not resulted in functional impairment, and does not affect an area of at least 6 square inches (39 square centimeters). 4. Audiometric examination corresponds to no greater than Level II hearing loss in the right ear and Level III hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 50 percent, but no higher, for a left forearm condition have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71A, Diagnostic Code 5205. 2. The criteria for an increased rating of 20 percent, but no higher, for left ulnar neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8516. 3. The criteria for an initial compensable rating for a left elbow scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.118, Diagnostic Code 7805. 4. The criteria for an initial compensable disability rating for BHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to February 1970, including overseas service in Vietnam. See service personnel records (SPRs). The Veteran appeals September 2012 and April 2013 rating decisions by the Agency of Original Jurisdiction (AOJ). Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board of Veterans' Appeals (Board) will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 1. Left Elbow For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations do not impact the Veteran's ratings as to a higher rating. Therefore, the Board will not address them in this decision. The Board also notes that a December 2016 rating decision granted a 40 percent rating for the Veteran's left forearm condition effective for only part of the period on appeal from November 12, 2015. By doing so, the AOJ also changed the Veteran's rating from Diagnostic Code 5211 to 5207. The Board notes that the Diagnostic Code has been in effect since February 1970. Even though the rating is protected, the AOJ increased the Veteran's rating and changed the Diagnostic Code so that the Veteran may be awarded a higher rating and so that the symptoms and conditions are more accurately reflected in the rating criteria. The Board is also granting the Veteran the maximum rating for the entire period on appeal. There is no reduction in rating or severance of service connection from a change in the Diagnostic Code because of the Board's action. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). A. Limitation of Motion The Veteran is right handed. See November 2015 examination report. Therefore, this issue concerns the Veteran's left minor joint. Under Diagnostic Code 5207, which concerns limitation of extension of the forearm, a 10 percent rating is assigned for extension limited to 45 degrees or to 60 degrees in the minor arm. A 20 percent rating in this arm requires extension limited to 75 degrees or 90 degrees. Extension limited to 100 degrees merits a 30 percent rating, while extension limited to 110 degrees merits the maximum rating of 40 percent. Diagnostic Code 5205 provides that ankylosis of the elbow is to be rated as follows: for favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees, 40 percent for the major elbow and 30 percent for the minor elbow; for intermediate ankylosis of the elbow, at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, 50 percent for the major elbow and 40 percent for the minor elbow; for unfavorable ankylosis of the elbow, at an angle of less than 50 degrees or with complete loss of supination or pronation, 60 percent for the major elbow and 50 percent for the minor elbow. 38 C.F.R. § 4.71a. The Board notes that the Veteran was granted a 40 percent rating based on the date of the November 2015 examination noting limitation of extension to 110 degrees or more. However, it is likely that the Veteran had such limitations prior to the examination. Furthermore, the Board notes that the November 2015 examination is the only examination that adequately accounts for flare-ups. It is likely that the Veteran warranted a higher rating during the prior examinations if flare-ups were properly accounted for. Therefore, the Board finds the Veteran is entitled to at least a 40 percent rating for the entire period on appeal prior to November 12, 2015. A higher rating than 40 percent rating would require a finding of ankylosis. The Board notes that the Veteran was found to have ankylosis during the March 2011 examination. Importantly, the March 2011 examiner noted ankylosis in the left forearm and that the Veteran is unable to supinate his left forearm. The Board interprets the March 2011 examiner's statement as being that the Veteran has complete loss of supination in his left forearm due to ankylosis. Therefore, the Board finds the Veteran is entitled to a 50 percent rating for his left forearm condition for the entire period on appeal. This is the maximum rating. B. Neuropathy Paralysis of the ulnar nerve (in the upper extremities) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity 20 for the minor extremity. Severe incomplete paralysis is rated as 40 for the major extremity and 30 for the minor extremity. Complete paralysis is rated as 60 percent disabling for the major extremity and 50 percent disabling for the minor extremity. Complete paralysis, also known as a "griffin claw" deformity, is caused by flexor contraction of the ring and little fingers, with atrophy very marked in the dorsal interspace and thenar and hypothenar eminences, and with loss of extension of the right and little fingers, ability to spread fingers or reverse, cannot adduct the thumb, and flexion of the wrist weakened. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). After a review of the evidence of record, the Board concludes that the Veteran's left upper extremity neuropathy is manifested with moderate incomplete paralysis and that a rating of 20 percent is warranted for the entire period on appeal. The March 2011 examination report noted moderate impairment overall. The October 2015 examination report noted moderate pain, paresthesias and/or dysesthesias, and numbness. Based on noted symptoms in medical evidence being moderate in severity, a 20 percent rating is warranted. However, the Veteran is not entitled to a higher than 20 percent rating. Medical evidence does not note severe neurological symptoms. The Veteran has not provided additional details regarding the severity of his left upper extremity neuropathy. The record also does not demonstrate complete paralysis. C. Scar Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage that affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Id. Higher ratings are available for scars that affect a larger area. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, that affect an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 20 percent disability rating is applicable when there are three or four scars that are unstable or painful. Id. A maximum 30 percent rating is warranted when there are five or more scars that are unstable or painful. Id. Under Diagnostic Code 7805, scars and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board initially notes that Diagnostic Code 7800 is not for application as the scars do not affect the head, face or neck. Further, Diagnostic Codes 7801 and 7802 are not applicable because the evidence does not demonstrate, nor does the Veteran contend that the scars affect an area of at least 6 square inches (39 square centimeters). Therefore, to warrant a rating under Diagnostic Code 7804, the evidence must demonstrate unstable or painful scars. Diagnostic Code 7804, Note 1, indicates that an unstable scar is one where for any reason, there is frequent loss of covering of skin over the scar. According to the March 2011 examination report, the Veteran's left elbow linear scar is 8 cm x 0.15 cm in size. See also October 2015 examination report. The Veteran's scar was not noted to be painful or unstable. Overall, the competent medical evidence does not note a painful or unstable scar and the total surface area does not amount to compensable levels. The Veteran has not provided additional details or argument regarding his left elbow scar. Accordingly, entitlement to a compensable level for the Veteran's left elbow scar is denied. 2. BHL Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VIA, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). On audiological evaluation in March 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 40 60 60 LEFT 40 30 40 60 60 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 48 in both ears. The speech recognition scores on the Maryland CNC word list were 92 percent for the right ear and 82 percent for the left ear. Applying the test results of the March 2011 examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected BHL. On audiological evaluation in October 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 65 75 LEFT 30 30 45 65 65 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 58 in the right ear and 51 in the left ear. The speech recognition scores on the Maryland CNC word list were 96 percent in both ears. Applying the test results of the October 2015 examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level II in the right ear and Level I in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected BHL. The Board finds that the above examinations are adequate for rating purposes. Apart from these two evaluations, there are no other adequate audiometric testing results for the remainder of the period on appeal which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. Overall, the Veteran contends he warrants a higher rating. However, based on the adequate audiological assessments of record and mechanical application of the rating criteria, a higher rating is not warranted. Accordingly, the evidence of record does not support a compensable disability rating for BHL and the appeal is denied. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). REASONS FOR REMAND 1. Lip/Right Face, Right Hip, Right Lower Extremity The Veteran has claimed cancer of the lip and right face, right hip pain, and numbness in the right foot. The Veteran is noted to have had cancer of the lip. See February 2011 and January 2016 treatment records. April 2016 treatment records also note right foot numbness. The Veteran is competent to attest to the existence of right hip pain. However, the Veteran has not been afforded an examination and no etiology opinions have been rendered on these issues. Importantly, the Veteran is presumed exposed to herbicide agents since he served in Vietnam during the presumptive period. The Veteran's November 2012 notice of disagreement (NOD) also noted a fall during service. See March and April 1969 service treatment records (STRs). Furthermore, as the Veteran claims radicular symptoms of the right lower extremity, whether the Veteran's neurological symptoms are related to his claimed right hip condition should also be considered. The Board finds remand is required for examinations and etiology opinions that addresses the above contentions and theories of entitlement. 2. TDIU A June 2019 rating decision granted TDIU effective October 11, 2018. However, this is a grant for only part of the period on appeal. The Veteran's October 2018 VA Form 21-8940 claimed entitlement to TDIU based on all of his service-connected conditions. This includes the Veteran's service-connected hearing loss, in which the September 2012 rating decision regarding a higher rating was appealed and is part of this decision. The Veteran filed his increased rating claim regarding hearing loss received February 23, 2011. As such, entitlement to TDIU is to be considered from February 23, 2011. The Board finds that the issue of entitlement to an earlier effective date for TDIU remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). However, this issue is inextricably intertwined with the other issues being remanded and therefore must also be remanded. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his lip/facial cancer, right hip pain, and right lower extremity neuropathy that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his lip/facial cancer. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's lip/facial cancer was incurred in, or otherwise related, to his time on active service, to include in-service exposure to herbicide agents? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the development in #1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his right hip condition and right lower extremity neuropathy. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner should identify all right hip and right lower extremity neurological conditions present. If any symptoms are not attributable to a diagnosis, any functional loss should be described. Then, for each identified condition and/or functional loss present, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's right hip condition was incurred in, or otherwise related, to his time on active service, to include his in-service fall? Is it at least as likely as not that the Veteran's right lower extremity neuropathy was incurred in, or otherwise related, to his time on active service, to include his in-service fall and/or exposure to herbicide agents? Is it at least as likely as not that the Veteran's right lower extremity neuropathy was CAUSED by his right hip condition? Is it at least as likely as not that the Veteran's right lower extremity neuropathy was AGGRAVATED by his right hip condition? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.