Citation Nr: 24010489
Decision Date: 03/05/24	Archive Date: 03/05/24

DOCKET NO. 17-17 569
DATE:  March 5, 2024

ORDER

Entitlement to an initial rating in excess of 30 percent for a left arm ruptured distal bicep is denied.

FINDING OF FACT

Throughout the period on appeal, the Veteran's left arm ruptured distal biceps tendon manifested in moderately severe symptoms of Muscle Group V to include the loss of power, weakness, lowered threshold of fatigue and uncertainty of movement, without severe symptoms.

CONCLUSION OF LAW

The criteria for entitlement to an initial rating in excess of 30 percent for a left arm ruptured distal bicep have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.56, 4.73, Diagnostic Code 5305.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from August 1967 to December 1978, January 1987 to October 1987, and August 2010 to March 2011, with additional periods of service in the Air National Guard. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. 

The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board in September 2021. A transcript of the hearing has been associated with the claims file. 

In January 2022, the Board issued a decision granting entitlement to an initial rating of 30 percent, but not higher, for a left arm ruptured distal bicep tendon. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2022 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion.

This case was most recently before the Board in May 2023, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, this matter was remanded to obtain updated VA treatment records and to provide the Veteran with a VA examination to determine the nature and severity of his current left arm ruptured distal bicep. Updated VA treatment records have been associated with the claims file and a May 2023 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. VA examinations were conducted in December 2023. The Board therefore finds that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action.

Increased Rating - Left Ruptured Distal Bicep

The Veteran seeks a higher initial rating for his left arm ruptured distal bicep because his symptoms are more severe than contemplated by the current rating assigned. Specifically, the Veteran argues that his symptoms more closely approximate severe impairment due to loss of power, weakness, lowered threshold of fatigue, fatigue-pain, numbness, loss of muscle tone, and inability to perform activities of daily living such as shaving. See e.g., Correspondence, June 16, 2023. The Veteran indicated he had aches and spasms from holding a cup of coffee with a bent elbow, shaking, and having to rest to alleviate symptoms. Id. The Veteran also indicates that his VA examination reports do not adequately reflect the current severity of his left arm ruptured distal bicep tendon. See e.g., Resubmitted VA examination report, June 22, 2011.

During the September 2021 Board hearing, the Veteran testified that his left arm (dominant arm, major axis) is prone to frequent painful spasms that require him to frequently stop movements to rest and "shake out" the pain, such as having to rest his arm multiple times while shaving. See Board hearing transcript, September 9, 2021. He testified that his left bicep is also subject to aches and spasms from such light lifting such as holding a coffee cup or holding a coat over his arm. See id. Finally, the Veteran testified that because his left arm ruptured distal bicep was initially misdiagnosed as a strain instead of the rupture that it truly is, his left bicep is demonstrably smaller than the right (minor axis) after requiring a graft from his left leg to reattach the tendon, and he must now reduce weight in the left arm by five pounds whenever he performs bicep curls at the gym. See id.

By way of background, the Veteran's service-connected left arm ruptured distal bicep has been afforded an initial 30 percent rating since March 27, 2011-the day after discharge. The Veteran asserts that instead of the disability becoming more severe at any particular point during the appellate period, the disability has instead been inadequately rated since the initial rating. See Board hearing transcript, September 9, 2021. 

Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.

Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

Muscle group V includes the flexor muscles of the elbow, the biceps, brachialis, and brachioradialis, which function to stabilize and flex the elbow. See 38 C.F.R. § 4.73, Diagnostic Code 5305. Under Diagnostic Code 5305, ratings of 0, 10, 30, and 40 percent are assigned for slight, moderate, moderately severe, and severe Group V muscle injury of the dominant hand, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5305. Here, the Veteran is right-handed and as such, major, as opposed to minor, ratings are applicable. 38 C.F.R. § 4.69. 

The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55 and 4.56. A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c).

Under Diagnostic Codes 5301 to 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, and severe. The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2).

A moderately severe muscle disability contemplates: injury characterized by a through-and-through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service treatment record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; or, if present, evidence of inability to keep up with work requirements. Objectively, a moderately severe muscle disability consists of: entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; or tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3).

A severe muscle disability contemplates: injury characterized by a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objectively, a severe muscle disability consists of: ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Id. 

If present, the following are also signs of severe muscle disability: 

(A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile.

(B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle.

(C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests.

(D) Visible or measurable atrophy.

(E) Adaptive contraction of an opposing group of muscles.

(F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle.

(G) Induration or atrophy of an entire muscle following simple piercing by a projectile. Id. 

Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56 (d). The Court, citing Robertson v. Brown, 5 Vet. App. 70 (1993), held that 38 C.F.R. § 4.56 (d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006).

To further evaluate whether a muscle injury is slight, moderate, or severe, the Board will consider the following:

"Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited Oct. 16, 2021).

"Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021).

"Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 

Turning to the evidence, the Veteran was afforded a VA examination in June 2011. At that time, in pertinent part, the Veteran reported stated there was no wound to his left bicep disorder. He did not receive any treatment in the field, The injury did not involve underlying structures such as blood vessels, bone, fascia, or nerves. He reported pain that was constant and localized. He described the pain as aching and a 6 out of 10 pain intensity. The pain was exacerbated by physical activity and lifting; the pain was relieved with medication. He can function with medication during times of pain. The VA examiner noted there was not loss of strength, weakness, fatigue, pain, or impairment of coordination. There were no complications to the muscle injuries. The Veteran reported he could not keep up with normal work requirements due to difficulty with lifting objects and that his injury affected body functioning. He reported overall functional impairment as pain when doing tasks with his dominant hand (left).

Upon physical examination in June 2011, the physical findings showed one varicose vein that was palpable. Palpation of the muscle revealed loss of deep fascia, impairment of muscle tone, and loss of muscle substance. Muscle loss was located in the left bicep measuring 4 cm. There was no muscle wound present. Muscle strength was graded as a 4+ in group V, and group VI as 3+. There was some diminished strength and range of motion. Muscle herniation was not shown. The injury involved tendon damage to the bicep tendon and nerve damage with paresthesia along the dorsal aspect of the left forearm. There was not bone or joint damage shown. 

The Veteran was afforded a VA examination in May 2013. At that time, the Veteran reported he had some problems with his arm, including his elbow. The Veteran indicated he had some improvement since surgery. He worked as a FedEx facilities manager and felt the arm did not affect his ability to do his job. He complained of fatigue and pain in the left elbow region with repeated supination or when doing curls with weight training. He was left-hand dominant. The Veteran endorsed flare-ups of the left bicep disorder that was described as impairing the usage of his left arm. 

Range of motion measurements in May 2013 showed normal range of motion. The Veteran was able to perform repetitive-use testing without additional loss of range of motion. Functional loss and/or functional impairment included weakened movement, excess fatigability, and deformity in the left extremity. There was no pain on palpation or tenderness of the soft tissue or joints. Muscle strength testing was normal. Ankylosis was not shown. Other pertinent findings showed weakened supination in the left as compared to the right, showing 4 out of 5 muscle strength. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The VA examiner found the Veteran's left bicep disorder did not impact his ability to work. The Veteran reported flare-ups without additional loss of motion but with pain and fatigue; the Veteran reported some discomfort and loss of strength as compared to the right. 

The Veteran was afforded a VA examination in December 2016. At that time, the Veteran reported persistent pain and numbness in his left arm. Upon physical examination, the Veteran did not have any scars; fascial defects or evidence of fascial defects; affected muscle substance or function; loss of power; weakness; lowered threshold of pain; lowered threshold of fatigue; fatigue-pain; impairment of coordination; nor uncertainty of movement. Muscle strength testing was all normal. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The VA examiner found the Veteran's left bicep disorder did not impact his ability to work. 

In a resubmitted December 2016 VA examination report, the Veteran indicated he had persistent numbness in his left arm, minimal scars, some impairment of muscle tonus, some loss of muscle substance, soft flabby muscles in wound area, loss of power, weakness, occasional lowered threshold of fatigue, occasional fatigue-pain, and shortened bicep muscles. The Veteran indicated the December 2016 VA examiner was in a hurry to finish her examination and that he made the appropriate corrections to the VA examination report. 

The Veteran was afforded a VA examination in May 2017. At that time, the Veteran did not have a penetrating muscle injury, such as a gunshot or shell fragment wound. The Veteran reported continuing pain in the bicep, and pain in the left forearm when rotating the left wrist. He felt his left arm was weaker than his right and was left hand dominant. He had a small are measuring 3 cm by 3 cm with decreased sensation below the left antecubital. He denied tenderness, redness, swelling, warmth, numbness, tingling, oral/topical analgesic use, ice or heat applications, steroid injections, and acupuncture. There was no evidence of pain on passive range of motion nor when the joint was used in nonweight-bearing.

Upon physical examination in May 2017, palpation showed loss of deep fascia, some impairment of muscle tonus, and some loss of muscle substance. There was loss of power, weakness, lowered threshold of fatigue, and uncertainty of movement that were consistent. Muscle strength testing was normal. The Veteran did not have muscle atrophy. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Other pertinent physical findings showed that the left bicep muscle belly was smaller than the right and forearm muscles had increased development. The VA examiner found the Veteran's left bicep disorder did not impact his ability to work. 

An October 2022 VA treatment record indicates the Veteran reported he had occasional pain that was aching and that the pain was reduced with stretching with rest. His primary goal was to reduce pain when riding his fat tire or mountain bike. 

The Veteran was afforded a VA elbow and forearm examination in October 2023. At that time, the Veteran denied flare-ups of the disorder. He denied any functional loss or functional impairment. Range of motion measurements were all normal. Active range of motion was the same as passive range of motion. There was no evidence of pain nor crepitus. There was tenderness at the bicep tendon insertion to radial tuberosity. The severity of the tenderness was mild to moderate. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion. The Veteran was not examined immediately after repetitive-use over time. The procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repetitive-use over time. There were no additional factors contributing to the disability. The Veteran did not have muscle atrophy. Ankylosis was not shown. The Veteran did not have any other impairments related to a flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. 

The Veteran was afforded a VA muscle injuries examination in December 2023. At that time, the Veteran did not have a penetrating muscle injury. He reported pain, fatigue, aching pain, and simply holding a cup of coffee to his belly high could cause pain and fatigue; shaving was painful. The Veteran had minimal scars. He did not have any known fascial defects or evidence of fascial defects associated with any muscle injury. The Veteran's left bicep disorder did not affect muscle substance or function. He did not have any loss of power, weakness, lowered threshold of fatigue, fatigue and/or pain, impairment of coordination, nor uncertainty of movement. Muscle strength testing was all normal. The Veteran did not have muscle atrophy. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Other pertinent physical findings showed the Veteran had fatigability and weakness with aggravation; the Veteran did not have aggravation at the examination. The VA examiner found the Veteran's left bicep disorder would impact his ability to work due to missing one to 1 week of work time lost in the past 12 months; he was a facility maintenance supervisor and did a lot of building maintenance and used his left arm for work that would get easily fatigued and weak. 

The Veteran was afforded a VA scar examination in December 2023. At that time, in pertinent part, the Veteran had mild paresthesias at the site of his bicep rupture repair surgery. His scars were not due to burns, not painful, and not unstable. The scar measured 19 centimeters by one centimeters. The scar did not have underlying tissue damage. 

Further review of the record shows that the Veteran receives VA treatment providers for various disabilities, to include his left arm ruptured distal bicep tendon. However, there is no indication from the treatment notes of record that the Veteran has reported left upper extremity symptoms that are worse than those noted above. 

Based on the foregoing, the Board finds that a rating in excess of 30 percent is not warranted for a left arm ruptured distal bicep tendon for a moderately severe muscle injury as the cardinal signs and symptoms of loss of power, weakness, a lowered threshold of fatigue and uncertainty of movement were demonstrated. 38 C.F.R. § 4.73, Diagnostic Code 5305; AB v. Brown, supra. As the Veteran has expressed disagreement with the rating that has been assigned with respect to the Veteran's bicep injury, the question is whether the evidence supports an initial rating in excess of 30 percent at any time during the period on appeal. As reported, the injury is to the left arm, which is the dominant arm, and in order to warrant an increased rating, there must be evidence of severe injury to the muscle group.

The Board finds that a rating higher of 40 percent for the Veteran's left arm ruptured distal bicep tendon is not warranted. The VA examination reports consistently demonstrate that during the appeal period he did not exhibit a penetrating wound, shattered bone(s), an open comminuted fracture with extensive debridement, prolonged infection, or the sloughing of soft parts, intermuscular binding and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, nor evidence of inability to keep up with work requirements. Objectively, the Veteran has not been shown to have a severe muscle disability that consisted of a ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 

In addition, the Veteran has not been shown to have X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; nor induration or atrophy of an entire muscle following simple piercing by a projectile. 

Rather, the Veteran has consistently shown he did not have muscle atrophy, a nonpenetrating wound, and the ability to keep up with his work requirements. The Board notes the Veteran reported, and the VA examiners found, that the Veteran would have some impairment at work due to his increased fatigability and pain. However, the Veteran has maintained consistent employment as a facilities manager without any severe impairment or functional loss reported of his left elbow disorder. In addition, although the Veteran reported discomfort, hardship, or pain of a great degree, the Veteran was able to ride his mountain bike and exercise with weight-lifting in the left bicep, albeit with less strength than the right side. These signs and symptoms are consistent with moderately severe impairment to Muscle Group V involving the major extremity and support the 30 percent rating already assigned. 

To the extent that the Veteran's left arm ruptured distal bicep tendon affects range of motion of the elbow, in general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In this case, given that Diagnostic Code 5305 encompasses elbow supination including the long head of the bicep as stabilizer of the shoulder joint, flexion of the elbow, and the flexor muscles of the elbow, it encompasses all muscle groups affected by the disability, as well as limitation of flexion and extension, as well as symptoms including pain, limitation of motion due to pain, and functional impairment such that a separate rating under the Diagnostic Codes applicable to limitation of motion of the arm would compensate the Veteran twice for the same, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. Cf. Estevez v. McDonough, 36 Vet. App. 157 (2023) ("The plain language of [§] 4.71a confirms that a veteran is only entitled to a single disability rating under [DC] 5201 for each arm that suffers from limited motion at the shoulder joint") (quoting Yonek v. Shinseki, 722 F.3d 1355, 1358 (2013)); id. at *28-*29 (pain at rest and pain on motion are not distinct manifestations of a disability that VA must separately evaluate under a meniscal diagnostic code and a limitation of motion diagnostic code). Consequently, a separate nor higher or separate rating is not warranted for the Veteran's left arm ruptured distal bicep tendon under an alternative diagnostic code.

The Board has considered whether a staged rating under Hart v. Mansfield, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). 

In so finding the above, the Board acknowledges the Veteran's contentions that his left arm ruptured distal bicep tendon is more severe than contemplated by the current rating assigned. The Veteran is competent to report symptoms such as pain because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, he is not considered competent to medically attribute or assess the severity of his left arm ruptured distal bicep tendon as required in the Diagnostic Code. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements do not constitute competent evidence and, the Board assigns more probative weight to the competent medical evidence of record.

Finally, the Board has considered whether an inferred claim for entitlement to a total disability rating based on individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's current employment status is unknown. The Veteran has also not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due to his service connected left arm ruptured distal bicep tendon. As such, a Rice claim is not raised.

Accordingly, the Board finds that an initial rating in excess of 30 percent for a left arm ruptured distal bicep tendon is not warranted. The appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.