Citation Nr: 22018920 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-57 245 DATE: March 30, 2022 ORDER A 10 percent disability rating, but no higher, for residuals of a left thumb/palm puncture wound (left thumb/palm injury residuals) is granted from November 13, 2019. FINDING OF FACT Since November 13, 2019, the Veteran's left thumb/palm injury residuals have been manifested by a painful scar that is not unstable and has no other disabling effects or functional impairment. CONCLUSION OF LAW Effective November 13, 2019, the criteria for a 10 percent disability rating for residual scar of a left thumb/palm puncture wound injury are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty served on active duty from September 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from the Regional Office (RO), which, in pertinent part, granted service connection for residuals of a left thumb/palm puncture wound, assigning a noncompensable (0 percent) disability rating, effective November 12, 2013. This matter was remanded by the Board in May 2021 for additional development. Increased Rating The Veteran seeks an increased evaluation for his service-connected left thumb/palm injury residuals. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks a compensable disability rating for his service-connected left thumb/palm injury residuals, which are rated as noncompensable (0 percent) under DC 7805. VA amended the rating criteria for skin conditions, effective August 13, 2018. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118. Under the scar regulations in effect both prior to and from August 13, 2018, DC 7805 provides that scars (including linear scars) and any disabling effects of scars not considered in a rating provided under DCs 7800-04 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Under DC 7805, scars (including linear scars), and other effects of scars are evaluated under DCs 7800, 7801, 7802, and 7804 including any disabling effects not provided for by DCs 7800-04. Any disabling effects not considered in a rating provided under DCs 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Under the scar regulations in effect both prior to and from August 13, 2018, under DC 7804 one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 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, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118. The Veteran contends symptoms of residuals of the left thumb puncture wound are worse as he has a lot of pain in the left thumb and palm due to nerve damage as well as numbness and limitation of motion in the left thumb. See November 2015 Notice of Disagreement (NOD), November 2017 VA Form 9. The pertinent evidence in this case consists primarily of clinical findings from VA examinations in 2015 and 2019. An April 2015 VA examination report shows the Veteran reported problems with numbness on the palmar surface of the thumb since a left thumb/palm puncture injury in 1976. Examination revealed there was no limitation of motion or evidence of painful motion for the left thumb for any fingers to include after repetitive use testing. The examiner noted that it was not possible to determine, without resorting to mere speculation, if additional limitation of motion is present due to pain during flare-ups or when joint is used repeatedly over a period of time, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. There was no pain on palpation and muscle strength testing showed hand grip was normal at 5/5 with no evidence of ankylosis or atrophy. The examiner noted there was function loss/impairment described as numbness with decreased sensation. The Veteran did not use any assistive devices and functioning was not so diminished that he would be equally served with amputation with prosthesis. Imaging studies of the left hand showed a 6mm linear metallic fragment in the soft tissues on the palmar/medial aspect of the proximal phalanx of the left thumb. The Veteran's residual scar was not painful or unstable and the left thumb/palm injury disability did not impact his ability to work. A May 2015 VA neurology note reflects electromyograph and nerve conduction (EMG/NCS) findings of ongoing denervation in the left abductor pollicis brevis, most likely due to local injury. A June 2015 VA treatment note shows the Veteran complained of problems using his left thumb in his work as a dental technician. He stated that he has significant difficulty grasping and manipulating objects because of the thumb injury and had to get his hand and wrist in unusual positions while working. Objective findings show decreased sensation in the radial aspect of the left thumb and over the pad. The Veteran was wearing a thumb spica splint which he stated he wore almost all the time except when actively working. The clinical assessment was left-hand nerve injury. On evaluation in November 2015 the Veteran had decreased sensation along the radial aspect of this left thumb and over the pad. See VA electrodiagnostic report from John Cochran VA Medical Center dated May 11, 2015 and VA orthopedic surgery consult, dated June 26, 2015 and November 20, 2015. Subsequently dated treatment records are not materially different from those reported on the prior VA examination and do not indicate a worsening in left hand symptoms. When examined by VA in November 2019, the Veteran's complaints of persistent numbness in the palmer surface of the left thumb remained unchanged, but he also complained of occasional sharp shooting pain at the base of the left thumb with movement, that resolves after a second. He denied any treatment for residual of the puncture wound in his left thumb. Examination revealed normal range of motion of the thumb and fingers of the left hand to include after repetitive use testing. There is no objective evidence of pain on passive range of motion when the joint is used in non-weight bearing testing or when the joint is used in non-weight bearing. There was no evidence of pain or pain on use, but the Veteran winced when the palmer aspect of his left thumb was palpated, consistent with residual, puncture wound left thumb/palm. The Veteran was able to perform repetitive-use testing with no additional functional loss or range of motion of the left thumb or left fingers. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran denied flare ups. The examiner explained that based on his clinical knowledge, medical expertise, review of the Veteran's records, and consideration the subjective complaints and objective exam findings, there was no rational basis to make a notation regarding any additional losses of function or motion when it comes to repeated use over time. There were no additional factors contributing to disability. See Hand and Finger Conditions Disability Benefits Questionnaire (DBQ), dated November 13, 2019. Muscle strength testing was normal at 5/5 for hand grip with no evidence of muscle atrophy or ankylosis. There were no other related other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices and functioning was not so diminished that he would be equally served with amputation with prosthesis. The left thumb/palm injury residuals did not impact his ability to perform any type of occupational task. The examiner noted that although Veteran reports persistent numbness in the thumb since the puncture wound, medical records showed he has a history of left carpal tunnel syndrome. On exam there is positive Tinel's test and Phalen's test on the left side. There is decreased sensation in his left thumb and index finger on light touch sensation test. The numbness in his left thumb is mostly due to his known left CTS, not a residual of the puncture wound to his left thumb. Id. Further review of the claims file shows that the Veteran is not currently undergoing treatment for the left thumb/palm disability, nor has he contended otherwise. After reviewing the record, and resolving all doubt in the Veteran's favor, the Board finds that a 10 percent evaluation is warranted for his left thumb/palm puncture wound residuals from November 13, 2019, the date of the VA examination first indicating a painful scar. Although the VA examination findings in 2015 indicate that the Veteran's healed scar was not or painful or unstable, the 2019 VA examiner noted the Veteran winced when the palmer aspect of his left thumb was palpated, consistent with residual, puncture wound left thumb/palm. Therefore, when the benefit of the doubt rule is applied, a 10 percent evaluation under DC 7804 affords a better approximation of the disability picture presented. However, the criteria for an even higher evaluation are not met as the Veteran does not have three or four scars that are painful or unstable. He is also not entitled to an additional 10 percent under DC 7804 Note (2) as his residual left thumb/palm scar has not been found to be unstable with the frequent loss of skin covering over the scar. As for the period prior to November 13, 2019 a compensable disability rating is not warranted as the 2015 VA examinations shows that the left thumb/palm scar is neither painful nor unstable. So, the rating remains noncompensable under DC 7804. There were no other pertinent physical findings, complications, signs and/or symptoms associated with the scar and the scar has no impact on the Veteran's ability to work. Without any medical evidence of greater impairment, the claim must be denied. Given the evidence as outlined above, the Board finds that the 0 percent rating adequately reflects the Veteran's left thumb/palm puncture wound disability and assignment of a compensable evaluation is not appropriate prior to November 13, 2019. The Board has considered all other potentially applicable diagnostic codes under both pre-and post-August 13, 2018 rating criteria; however, there is no evidence of a burn scar; a scar located on the head, face, or neck; a deep and nonlinear scar with underlying soft tissue damage; a scar covering an area of 144 square inches; or limitation of motion/function due to the scar. Thus, diagnostic codes for rating these manifestations are not for application. See 38 C.F.R. § 4.118 DCs 7800, 7801, 7802, 7805. The Board has also considered whether the Veteran's complaints of numbness and decreased sensation represent residuals of his service-connected left thumb/palm puncture wound, such that a separate rating is warranted. However, an additional rating is not warranted as the 2019 VA examiner specifically concluded these symptoms were unrelated to the service-connected left thumb/palm puncture wound injury but rather were symptoms of non-service-connected carpal tunnel syndrome. Accordingly, a separate disability rating is not warranted. (Continued on the next page) The Board has also carefully considered the Veteran's contentions in making this decision. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although he is competent to describe his symptoms, he is not competent to identify a specific level of disability according to the appropriate diagnostic code, as this is a complex medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In evaluating a claim for an increased schedular rating, VA must weigh the Veteran's statements against the factors as enumerated in the rating criteria discussed above, which in part, involves the examination of clinical data gathered by competent medical professionals. In this case the Veteran's assertions are outweighed by the medical evidence of record, especially the relevant VA examinations. After resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence supports a 10 percent evaluation for the left thumb/palm puncture wound disability effective November 13, 2019; prior to that date it is most consistent with a noncompensable (0) percent rating. 38 C.F.R. § 3.102. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.