WRIST IMPAIRMENT OF

C. TRUEBA · 2023 · Case ID: 23001231

MIXED

Summary

The veteran, who served in the United States Army from October 1964 to September 1966, including service in Vietnam, appeals the denial of increased ratings for several conditions and the denial of entitlement to TDIU. The Board granted a 30 percent rating for right upper extremity nerve damage associated with shell fragment wounds from June 26, 2018, to June 7, 2021, but denied higher ratings for this condition and for residuals of right wrist shell fragment wound and left index finger scar. The Board found the veteran's right wrist condition warranted only a 10 percent rating, which he already received, as the evidence did not support ankylosis or a higher degree of functional loss. For the right chest shell fragment wound, the Board found the veteran was already receiving the maximum schedular rating for muscle group II and denied a higher rating, noting the evidence did not support a higher impairment level or an extraschedular evaluation. The left index finger scar was also denied a rating higher than 10 percent, as it was not unstable or painful enough to warrant a higher evaluation. The Board remanded claims for a separate rating for right chest shell fragment wound, muscle group I, and for TDIU, as these issues were raised by the evidence but not adequately developed by the agency of original jurisdiction.

Rationale

Evidence did not support ankylosis or higher functional loss; Veteran already in receipt of maximum schedular rating (10%); Benefit of the doubt rule did not apply as evidence weighed against higher rating

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

05-14 709

Full Decision Text

Citation Nr: 23001231
Decision Date: 01/09/23 Archive Date: 01/09/23

DOCKET NO. 05-14 709
DATE: January 9, 2023

ORDER

Entitlement to a rating in excess of 10 percent for residuals of right wrist shell fragment wound is denied.

Entitlement to a rating in excess of 30 percent for residuals of right chest shell fragment wound, muscle group II, minor arm, is denied.

Entitlement to a rating in excess of 10 percent for left index finger scar is denied.

Entitlement to a rating of 30 percent percent from June 26 2018 to June 7, 2021 for right upper extremity nerve damage associated with shell fragment wounds is granted.

Entitlement to a rating in excess of 30 percent from June 8, 2021 forward for right upper extremity nerve damage associated with shell fragment wounds is denied.

Entitlement to a rating in excess of 10 percent for left upper extremity nerve damage associated with left index finger scar is denied.

REMANDED

1. Entitlement to a separate rating for right chest shell fragment wound, muscle group I, minor arm, is remanded.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's residuals of right wrist shell fragment wound is manifest by no worse than 15 degrees dorsiflexion, 5 degrees palmar flexion, painful motion, and decreased grip strength and endurance.

2. At all times relevant to the appeal, the Veteran has been in receipt of the schedular maximum for residuals of right chest shell fragment wound, muscle group II, minor arm.

3. The Veteran has a single left index finger scar that is painful but not unstable.

4. From June 26, 2018 to June 7, 2021, the Veteran's right upper extremity nerve damage associated with shell fragment wounds is manifest by moderate incomplete paralysis of the minor extremity.

5. Throughout the appeal, the Veteran's right upper extremity nerve damage associated with shell fragment wounds been manifest by no more than moderate incomplete paralysis of the minor extremity.

6. The Veteran's left upper extremity nerve damage associated with left index finger scar is manifest by no more than mild incomplete paralysis of the major extremity.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for residuals of right wrist shell fragment wound have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7805-5215.

2. The criteria for a rating in excess of 30 percent for residuals of right chest shell fragment wound, muscle group II, minor arm, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5302.

3. The criteria for a disability rating in excess of 10 percent for left index finger scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804.

4. The criteria for a rating of 30 percent from June 26, 2018 to June 7, 2021 for right upper extremity nerve damage associated with shell fragment wounds has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

5. The criteria for a rating in excess of 30 percent for right upper extremity nerve damage associated with shell fragment wounds have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

6. The criteria for a rating in excess of 10 percent for left upper extremity nerve damage associated with left index finger scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8616.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active
associated with shell fragment wounds have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1964 to September 1966. He served in Vietnam and was awarded, among others, the Purple Heart, and the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran presented sworn testimony at a hearing before the undersigned in June 2007.

The Board remanded this matter in January 2021 for additional development. The Board finds that there has been substantial compliance with its remand directives and that the matters are now properly before the Board. See, Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

1. Entitlement to a rating in excess of 10 percent for residuals of right wrist shell fragment wound.

The Veteran's residuals of shell fragment wounds of the right wrist have been rated at 10 percent under Diagnostic Code 7805-5215. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27 (2019). In this case, the Agency of Original Jurisdiction (AOJ) assigned a hyphenated diagnostic code to recognize Diagnostic Code 7805 (other scars (including linear scars) and other effects of scars already evaluated under diagnostic codes 7800, 7801, 7802, and 7804) as the Veteran's underlying diagnosis and Diagnostic Code 5215 (limitation of wrist motion) as the underlying pathology. See 38 C.F.R. § 4.20. Put simply, the assignment of a combined code in this manner indicates the right forearm diagnosed with scars, but which is rated under the code criteria for the resulting limitation of wrist motion.

Under the former VA regulations, 38 C.F.R. § 4.71a, Diagnostic Code 5215 provides for a maximum rating of 10 percent when dorsiflexion of a wrist limited to less than 15 degrees or palmar flexion is limited in line with the forearm. A higher rating can be assigned under Diagnostic Code 5214 if there is ankylosis of the wrist. 38 C.F.R. § 4.71a, DCs 5214, 5215.

Normal range of palmar flexion for the wrist is 80 degrees, and normal range of dorsiflexion is 70 degrees. Palmar flexion in line with the forearm equates to 0 degrees of palmar flexion or dorsiflexion. 38 C.F.R. § 4.71a, Plate I.

Effective February 7, 2021, no changes were made under the revised regulations to 38 C.F.R. § 4.71a, Diagnostic Codes 5214 or 5215.

The Veteran was afforded a VA scars examination in September 2004. The Veteran reported worsening right wrist pain associated with episodes of cramping that can occur 3 to 4 times per year and last 1 to 2 months, interfering with his sleep. He further reported taking naproxen to help alleviate the pain. Active range of motion was measured as follows: 45 degrees extension and flexion; 15 degrees ulnar deviation; and 10 degrees radial deviation. Tenderness upon palpation of the volar wrist area was noted. Full pronation and supination of the forearm was noted, as was "some pain on supination."

In an October 2004 letter, the Veteran reported that the pain in his right wrist is sometimes so severe that it is "impossible for [him] to perform duty". He further asserted having to take sleeping pills due to the pain.

A May 2006 VA treatment record notes the Veteran reported persistent pain at the right wrist as well as a loss of force in his right hand and fingers. He also reported worsening skin and persistent itching.

A November
flexion; 15 degrees ulnar deviation; and 10 degrees radial deviation. Tenderness upon palpation of the volar wrist area was noted. Full pronation and supination of the forearm was noted, as was "some pain on supination."

A November 2006 VA treatment record notes the Veteran reported right wrist pain and numbness. A history of right wrist foreign object was noted.

A March 2008 VA treatment record notes the Veteran reported persistent right wrist pain and decreased strength.

The Veteran was afforded a VA examination in September 2008. The VA examiner noted severe limitations to Veteran's ADLs and the Veteran reported that he cannot work due to bone pain and weakness in the right arm.

The Veteran was afforded a VA joints examination in August 2009. The Veteran reported right wrist pain and reduced grip strength. Numbness at the fingertips of the right hand was noted. Use of Naproxen for pain was noted. The Veteran reported flare-ups during which he is unable to use his right hand. Right wrist range of motion was measured as follows: 30 degrees dorsiflexion; 55 degrees right palmar flexion; 18 degrees right radial deviation; and 35 degrees right ulnar deviation. No additional loss of function or range of motion was noted upon repetitive use testing.

An August 2009 VA treatment record notes the Veteran reported right wrist pain for which he uses a wrist brace. No gross motor or sensory deficit was noted.

The Veteran was afforded a VA wrist conditions examination in November 2015. A diagnosis of right wrist shell fragment wound was noted. The examiner noted that the Veteran is left hand dominant. The Veteran reported weekly flare-ups that last for hours. He further reported loss of hand grip. Right wrist range of motion was measured as follows: 60 degrees palmar flexion; 50 degrees dorsiflexion; 30 degrees ulnar deviation; and 10 degrees radial deviation. Pain at the thumb area and the dorsal area of the wrist were noted. It was then noted that the range of motion contributes to his loss of grip. Pain with weight-bearing and upon palpation were noted. No additional loss of function or range of motion was noted after repetitive use testing. No range of motion estimates were proved for repeated use over time or during flare-ups. Active movement against some resistance was noted for muscle strength testing. No use of an assistive device was noted. No functional impact was noted.

The Veteran was afforded a VA muscle injuries examination in November 2015. A diagnosis of right wrist shell fragment wound was noted. Penetrating muscle injuries of muscle group VII, right flexors of the wrist, and of muscle group VIII, right extensors of the wrist, were noted. Consistent loss of power, weakness, lower threshold of fatigue, and fatigue-pain in muscle groups VII and VIII were noted. Less strength than normal was noted in muscle groups VII and VIII upon testing. No use of assistive devices was noted. No functional impact was noted.

The Veteran was afforded a VA muscle injuries examination in November 2015. Diagnoses of right wrist shell fragment wound and right thoracic intercostal shell fragment wound were noted. A penetrating muscle injury of muscle group II, right shoulder girdle: pectoralis major, was noted. A penetrating muscle injury of muscle group VII, right flexors of the wrist, was noted. A penetrating muscle injury of muscle group VIII, right extensors of the wrist, was noted. Consistent loss of power, weakness, lower threshold of fatigue, and fatigue-pain in muscle groups II, VII, and VIII were noted. Less strength than normal was noted in muscle groups II, VII, and VIII upon testing. No use of assistive devices was noted. No functional impact was noted.

The Veteran was afforded a VA muscle injuries examination in June 2018. A diagnosis of right wrist shell fragment wound was noted. Penetrating shell fragment wound, muscle groups VII, and VIII, were noted, as was fatigue-pain. It was further noted that the Veteran's muscle injuries limited him to a sedentary job with no heavy lifting, carrying, pushing, pulling, or handling.

The Veteran was afforded a VA scars examination in June 2018. The Veteran reported
fatigue-pain in muscle groups II, VII, and VIII were noted. Less strength than normal was noted in muscle groups II, VII, and VIII upon testing. No use of assistive devices was noted. No functional impact was noted.

The Veteran was afforded a VA scars examination in June 2018. The Veteran reported itching at the right wrist. The right wrist scar was not noted as painful, unstable, or with frequent loss of covering of skin, and was measured at 3.1 cm by .2 cm and described as superficial and non-linear. No functional limitation was noted.

The Veteran was afforded a VA wrist conditions examination in June 2018. A diagnosis of right wrist shell fragment wound was noted. The Veteran reported right wrist pain with nightly flare-ups. He further reported loss of hand grip strength. Initial range of motion was measured as follows: 45 degrees palmar flexion; 35 degrees dorsiflexion; 25 degrees ulnar deviation; and 10 degrees radial deviation. Pain upon weight-bearing, palmar flexion, dorsiflexion, and tenderness upon palpation of the dorsal aspect of the right wrist joint were noted.

The Veteran was afforded a VA scars examination in June 2021. A diagnosis of right was noted. The Veteran denied superficial pain on the scar, but endorsed deep pain in the right wrist. The scar was not noted as being unstable with frequent loss of covering of skin. The right wrist scar was measured as 2 cm by .2 cm. No underlying tissue damage was noted.

The Veteran was afforded a VA muscle injuries examination in June 2021. A diagnosis of residuals, right wrist shell fragment wound, was noted. Penetrating muscle injury was noted. The Veteran reported that his right wrist is painful. He further reported right wrist fatigue. Muscle groups VII and VIII were affected on the right side. Consistent, right-side fatigue/pain was noted for muscle groups VII and VIII. It was noted that the Veteran's muscle injuries preclude him from pushing, pulling, or carrying objects that weigh 5 pounds or more, preclude him from rapid right wrist movement, and preclude him from rapid upper extremity movement. The Veteran confirmed that he is left hand dominant. The examiner noted that the wrist muscle injury is moderate because it causes pain in the affected areas when movement is required involving these muscles and they limit the movement partially but not totally.

The Veteran was afforded a VA wrist conditions examination in June 2021. A diagnosis of right wrist shell fragment wound was noted. The Veteran reported moderate to severe pain and difficulty with handgrip activities. The Veteran confirmed that he is left-handed. He reported flare-ups while doing hand grip activities. Active and passive range of motion of the right wrist was measured as follows: 45 degrees dorsiflexion; 35 degrees palmar flexion; 25 degrees ulnar deviation; and 10 degrees radial deviation. Pain was noted on all measurements, with weight-bearing and nonweight-bearing, passive motion, and on rest. Pain at the thumb and dorsal areas was noted. No additional loss of function or range of motion was noted after repetitive use testing. The examiner estimated that there would be no additional loss of range of motion after repeated use over time, but then estimated 0 degrees motion during flare-ups due to pain. Difficulty with lifting and repetitive use were noted as functional impacts.

The Veteran was afforded a VA muscle injuries examination in September 2021. A diagnosis of residuals, right wrist shell fragment wound with damage to muscle groups VII and VIII, was noted. Penetrating muscle wound was noted. It was noted that entrance and exit wounds are small or linear. Consistent fatigue/pain for right muscle groups VII and VIII was noted. Occasional impairment of coordination for right muscle groups VII and VIII was noted. The examiner noted that the Veteran's muscle injuries limited the Veteran in pushing, pulling, or carrying objects that weigh 5 or more pounds. The VA examiner described the Veteran's muscle group VII and VIII injuries as moderate.

The Veteran was afforded a VA muscle injuries examination in January 2022. A diagnosis of residuals, right wrist shell fragment wound, was noted. The Veteran reported pain at his shell fragment injury sites. Consistent fatigue/pain with right muscle groups VII and
was noted. It was noted that entrance and exit wounds are small or linear. Consistent fatigue/pain for right muscle groups VII and VIII was noted. Occasional impairment of coordination for right muscle groups VII and VIII was noted. The examiner noted that the Veteran's muscle injuries limited the Veteran in pushing, pulling, or carrying objects that weigh 5 or more pounds. The VA examiner described the Veteran's muscle group VII and VIII injuries as moderate.

The Veteran was afforded a VA wrist conditions examination in March 2022. A diagnosis of residuals, shell fragment wound right wrist, was noted. The Veteran reported constant right wrist pain and stiffness and stated that any activity involving gripping or moving the wrist causes pain. He further reported flare-ups of increased pain 4 to 5 times per year, lasting a week at a time, and during which he cannot use the wrist and hand to grip anything. Initial active/passive range of motion was measured as follows: 30 degrees dorsiflexion; 10 degrees palmar flexion; 25 degrees ulnar deviation; and 10 degrees radial deviation. Pain was noted on all measurements. Pain was noted on weight-bearing, nonweight-bearing, active motion, and passive motion. Tenderness upon palpation of the radial and dorsal right wrist was noted. No additional loss of function or range of motion was noted after repetitive use testing. The examiner stated that pain from repeated use over time and during flare-ups would contribute to a functional loss, with range of motion estimated as follows: 15 degrees dorsiflexion; 5 degrees palmar flexion; 15 degrees ulnar deviation; and 5 degrees radial deviation. Regular use of a wrist brace was noted. The examiner stated that the Veteran is limited in pushing, pulling, or carrying objects that weigh 5 or more pounds or doing activities that require rapid right wrist movement.

Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's residuals of right wrist shell fragment wound is not warranted.

Here, the evidence of record shows that at no time has right wrist dorsiflexion been any less that 15 degrees or palmar flexion any less than 5 degrees. Even with consideration of pain on range of motion, after repetitive range of testing, and based on his statements as to the functional impact during flare-ups, none of the VA examiners found any evidence of muscle atrophy or ankylosis of the left wrist.

In light of the foregoing, the Board finds that the Veteran is already in receipt of the highest available schedular rating (i.e., 10 percent) under Diagnostic Code 5215 for the entire appeal period. As there is no lay or medical evidence of actual or functional ankylosis of the left wrist, Diagnostic Code 5214 does not apply. See, Chavis v. McDonough, 34 Vet. App. 1. (2021) (finding the Board must consider whether a higher or separate evaluation may be warranted based on functional loss equivalent to ankylosis).

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 10 percent for residuals of right wrist shell fragment wound. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

2. Entitlement to a rating in excess of 30 percent for residuals of right chest shell fragment wound (muscle group II).

The Veteran's residuals of right chest shell fragment wound are rated at 30 percent under Muscle injuries of the shoulder girdle and arm are rated under 38 C.F.R. § 4.73, DC 5301-5306. DC 5302 DC 5302 pertains to Muscle Group II regarding the extrinsic muscles of the shoulder girdle involved are the pectoralis major II (costosternal); latissimus dorsi and teres major (teres major, although technically an intrinsic muscle, is included with latissimus dorsi); pectoralis minor; and rhomboid. The functions of these muscles include the depression of arm from vertically overhead to hanging at side; downward rotation of scapula; and acting with Group III in forward and backward swing of arm. Under DC 5302, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body. A 20 percent rating requires moderate disability of the minor and major arm. A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe. A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

The Veteran was afforded a VA muscles examination in September 2004. A right chest scar measuring 4 cm by .5 cm with hypertrophy and increased pigmentation, but stable, was noted. No skin breakdown was noted. Some tenderness upon palpation was noted. No loss of muscle function noted. Right shoulder range of motion was measured as follows: 170 degrees flexion; 170 degrees abduction; 80 degrees external rotation; and 80 degrees internal rotation. No pain was observed. Major functional impact was not noted.

The Veteran testified at the June 2007 Board hearing that he has a lot of pain in his right shoulder and moving it is very difficult.

The Veteran was afforded a VA examination in September 2008. A right chest scar measuring 5 cm by 2 cm was noted. The scar was further noted as not painful, not tender to touch, and not adherent.

The Veteran was afforded a VA examination in August 2009. The examiner indicated the Veteran's chest injury was to muscle group I (serratus magnus).

The Veteran was afforded a VA muscle injuries examination in November 2015. A diagnosis of right thoracic intercostal shell fragment wound were noted. A penetrating muscle injury of muscle group II, right shoulder girdle: pectoralis major, was noted. Consistent loss of power, weakness, lower threshold of fatigue, and fatigue-pain in muscle group II was noted. Less strength than normal was noted in muscle group II upon testing. No use of assistive devices was noted. No functional impact was noted.

A January 2016 addendum opinion notes the Veteran has a muscle group II injury in his right shoulder joint, and not muscle group I.

The Veteran was afforded a VA muscle injuries examination in June 2018. Diagnoses of residuals, shell fragment wound, right chest, with damage of extrinsic muscle group 1, residuals, shell fragment wound, right chest, with damage of extrinsic muscle group II, and right wrist shell fragment wound, were noted. Penetrating shell fragment wound was noted. Fatigue/pain with muscle groups I and II was noted. It was further noted that the Veteran's muscle injuries limited him to a sedentary job with no heavy lifting, carrying, pushing, pulling, or handling.

The Veteran was afforded a VA scars examination in June 2018. The Veteran reported itching at the areas of his right chest scar, but neither pain not instability. The right upper trunk axillary/chest area scar was described as "undistinguishable". No functional limitation was noted.

The Veteran was afforded a VA muscle injuries examination in June 2021. A diagnosis of residuals, shell fragment wound right chest with damage of extrinsic muscle groups I and II, was noted. Penetrating muscle injury was noted. The Veteran reported that his right chest was painful and that the pain radiates into his posterior shoulder and down his right torso. Muscle groups I and II were affected on the right side. A February 2004 chest x-ray was noted as revealing a 5 mm metallic fragment at the right axillary soft tissues. Consistent, right-side fatigue/pain was noted for muscle groups I and II. It was noted that the Veteran's muscle injuries preclude him from pushing, pulling, or carrying objects that weigh 5 pounds or more. The Veteran confirmed that he is left hand dominant. The examiner stated that the muscle groups involved based on pain distribution and function are group I serratus magnus and group II latissimus dorsi muscles as movements that involve these muscles are painful to the Veteran and rotation of the scapula and protraction is painful when he moves his right arm. The examiner then stated that the scar on the chest wall "shows these muscles are involved." Finally, the examiner noted that the chest wall muscle injuries are moderate because they cause pain in the affected areas when movement is required involving these muscles and they limit the movement partially but not totally.

The Veteran was afforded a VA scars examination in June 2021. A diagnoses of right chest wall scar was noted. The Veteran denied superficial pain on the scar, but endorsed deep pain in the chest wall. The scar was not noted as being unstable. The right chest scar was measured as 7 cm by 1 cm. No underlying tissue damage was noted.

The Veteran was afforded a VA muscle injuries examination in September 2021. A diagnosis of residuals, shell fragment wound, right chest, with damage of extrinsic muscle groups I and II, was noted. Penetrating muscle wound was noted. It was noted that entrance and exit wounds are small or linear. It was further noted that the chest wall scar is posterior to the axilla and is a surgical scar where metal fragments were excised, though with retained metal fragments. Consistent fatigue/pain for right muscle groups I and II was noted. The examiner noted that the Veteran's muscle injuries limited the Veteran in pushing, pulling, or carrying objects that weigh 5 or more pounds, and limited him in reaching to shoulder height or above or lifting, pushing, pulling, or carrying objects that weigh 10 or more pounds. The VA examiner described the Veteran's muscle group I and II injuries as mild.

The Veteran was afforded a VA muscle injuries examination in January 2022. A diagnosis of residuals, shell fragment wound, right chest, with damage of extrinsic muscle groups I and II, was noted. The Veteran reported pain at his shell fragment injury sites. Consistent fatigue/pain with right muscle groups I and II was noted. The examiner noted that due to his muscle injuries, the Veteran is precluded from heavy lifting, carrying, pushing, pulling, or handling.

The Board notes that the Veteran has been in receipt of a separate rating for right shoulder limitation of motion (DC 5201) since January 2022.

Here, the Board notes that the evidence of record shows that the Veteran is left-handed and that he has been in receipt of a 30 percent rating for residuals of right chest shell fragment wound, muscle group II, minor arm, at all times relevant to this appeal.

The Board may not assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also, Yancy v. McDonald, 27 Vet. App. 484 (2016) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). In this case, the Board finds that the issue of an extraschedular rating for residuals of right chest shell fragment wound, muscle group II have neither been argued nor raised by the record.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 30 percent for residuals of right chest shell fragment wound, muscle group II. As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply.
6) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). In this case, the Board finds that the issue of an extraschedular rating for residuals of right chest shell fragment wound, muscle group II have neither been argued nor raised by the record.

3. Entitlement to a rating in excess of 10 percent for left index finger scar.

The Veteran contends that he is entitled to a higher rating for his left index finger scar.

The Veteran's left index finger scar is rated under Diagnostic Code 7804 for unstable or painful scar.

The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments.

Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id.

The Veteran was afforded a VA scars examination in September 2004. A visible, left index finger scar measuring 2 cm in length that is hypopigmented but smooth was noted. It was further noted that the scar does not cause adhesions to the underlying tissue and was not painful. No elevation or depression of the surface contour of the scar was noted. It was characterized as superficial. No induration or inflexibility of skin at the area of the scar was noted. The area of the scar was noted as nontender. Full range of motion and full ability to grip were noted.

The Veteran was afforded a VA scars examination in September 2008. The Veteran reported that since his last examination his left index finger has severe pain with loss of motion. The left index finger scar was measured at 2 mm squared by 2 cm squared. Tenderness on palpation, adherence to underlying tissue, limitation or motion, loss of function, underlying soft tissue damage, breakdown, underlying tissue loss, elevation or depression were not noted. The scar was described as being the same color as normal skin. No functional limitation was noted.

The Veteran was afforded a VA scars examination in November 2015. A diagnosis of left index finger scar was noted. The Veteran reported intermittent left index finger scar pain and hypersensitivity associated with cold and damp weather. The scar was described as linear and measuring 3.5 cm in length.

The Veteran was afforded a VA scars examination in June 2018. The Veteran reported itching at the area of his left index finger scar. The scar was not noted as painful, unstable, or with frequent loss of covering of skin and was described as linear and 3.6 cm. The right upper trunk axillary/chest area scar was described as "undistinguishable". No functional limitation was noted.

The Veteran was afforded a VA scars examination in January 2022. A left index finger scar was noted and neither painful nor unstable and was measured as 3 cm by .5 cm. No underlying tissue damage was noted. No functional impact was noted.

The Veteran was afforded a VA scars examination in March 2022. A left index finger scar was noted as sensitive to touch, but neither not unstable. The left index finger scar was measured as 3 cm by .1 cm.

The Board finds that the evidence of record persuasively weighs against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran's scar is not manifest by three or four scars that are unstable or painful. Here, the evidence clearly establishes that the left index finger scar is variably painful or itching, but not unstable, linear, and measuring only 3.5 cm in length.
No underlying tissue damage was noted. No functional impact was noted.

The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's left index finger scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805.

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and itching, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's left index finger scar is manifest by three or four scars that are unstable or painful.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 10 percent for left index finger scar. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

4. Entitlement to a rating in excess of 20 percent prior to June 8, 2021 for right upper extremity nerve damage associated with shell fragment wounds.

5. Entitlement to a rating in excess of 30 percent from June 8, 2021 forward for right upper extremity nerve damage associated with shell fragment wounds

Paralysis of the radicular nerves is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis is rated as 90 percent for the major extremity and 80 percent for the minor extremity. 38 C.F.R. § 4.124a.

The Board notes that the record reflects that the Veteran is left-handed.

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 of 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
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 of 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).

The Veteran was afforded a VA peripheral nerves conditions examination in June 2018. A diagnosis of right radial nerve neuropathy was noted. Upon examination, mild, constant upper left and right extremity pain was noted, as were moderate right and left upper extremity paresthesias/dysthesias and numbness. Decreased light touch in the bilateral hands was noted. Moderate, incomplete paralysis of the right radial nerve was noted. Mild, incomplete paralysis of the right and left median nerves was noted. Occasional use of a right wrist brave for right hand pain was noted.

The Veteran was afforded a VA peripheral nerves conditions examination in June 2021. A diagnosis of right radial nerve paralysis was noted. Moderate constant pain, paresthesias, and numbness of the bilateral upper extremities was noted. Decreased light touch sensation of the bilateral hands was noted. Mild, incomplete paralysis of the right radial nerve and mild, incomplete paralysis of the bilateral median nerves were noted. Normal sensory capacity and strength of 4/5 was noted. Good dexterity in the right hand was noted. The examiner then noted that the right radial nerve injury is mild in nature, affecting mainly right wrist extension, but not hand intrinsics. Some sensory loss in the right-hand dorsum with strength 4/5 and normal proprioception and functional range of motion were noted. Use of a right wrist orthosis was noted.

The Board notes that VA treatment records are replete with references to use of a right wrist brace and right wrist pain.

Based on the above, the Board finds that at all times relevant to the appeal, the disability is primarily manifest by constant pain affecting range of motion, paresthesias, and numbness of the right upper extremity. Further, the Board notes that the June 2018 VA examiner found the Veteran's incomplete paralysis of the right radial nerve to be moderate. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis throughout the period on appeal.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the Board finds that a 30 percent disability rating prior from June 26, 2018 to June 7, 2021 is warranted.

Further, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 30 percent for right upper extremity nerve damage associated with shell fragment wounds. As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

6. Entitlement to a rating in excess of 10 percent for left upper extremity nerve damage associated with left index finger scar.

The Veteran contends that he is entitled to a higher rating for left upper extremity nerve damage associated with left index finger scar.

Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a
benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

6. Entitlement to a rating in excess of 10 percent for left upper extremity nerve damage associated with left index finger scar.

The Veteran contends that he is entitled to a higher rating for left upper extremity nerve damage associated with left index finger scar.

Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8616. 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 and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Complete paralysis is rated as 60 percent for the major extremity and 50 percent for the minor extremity. 38 C.F.R. § 4.124a.

The Board notes that the Veteran has verified that he is left hand dominant. See June 2021 VA examination reports.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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).

The Veteran was afforded a VA hand and finger conditions examination in June 2018. Diagnoses of left index finger scar and limited flexion of index finger were noted. The Veteran reported continuing itchiness with his scar as well as limited range of motion of the left index finger. Initial range of motion of the left index finger was measured as follows: 90 degrees MCP; 90 degrees PIP; and 48 degrees DIP. It was noted that the Veterans range of motion results in lessened pinch action strength. Pain was noted on flexion. No additional loss of function or range of motion was noted after repetitive use testing. The examiner would not provide a range of motion estimate for repeated use over time.

The Veteran was afforded a VA peripheral nerves conditions examination in June 2018. A diagnosis of left index finger interosseous neuropathy was noted. Upon examination, mild, constant upper left extremity pain was noted, as were moderate left upper extremity paresthesias/dysthesias and numbness. Decreased light touch in the bilateral hands was noted. Mild, incomplete paralysis of the left ulnar nerve was noted.

The Veteran was afforded a VA hand and finger conditions examination in June 2021. A diagnosis of left index finger injury with limited flexion was noted. The Veteran reported increasing pain with weekly flare-ups lasting hours and causing loss of handgrip strength. Active and passive range of motion of the left index finger was measured as follows: 90 degrees MCP flexion; 90 degrees PIP flexion; and 35 degrees DIP flexion. A 1.5 cm gap between the finger and proximal transverse crease of the hand on maximal finger flexion was noted. Pain upon palpation was noted. Pain was noted on active and passive motion as well as on rest. Pain was noted as causing a loss of handgrip strength. No additional loss of function or
A diagnosis of left index finger injury with limited flexion was noted. The Veteran reported increasing pain with weekly flare-ups lasting hours and causing loss of handgrip strength. Active and passive range of motion of the left index finger was measured as follows: 90 degrees MCP flexion; 90 degrees PIP flexion; and 35 degrees DIP flexion. A 1.5 cm gap between the finger and proximal transverse crease of the hand on maximal finger flexion was noted. Pain upon palpation was noted. Pain was noted on active and passive motion as well as on rest. Pain was noted as causing a loss of handgrip strength. No additional loss of function or range of motion was noted after repetitive use testing. After repeated use over time, flexion was estimated as follows: 90 degrees MCP; 100 degrees PIP; and 35 degrees DIP. The gap between the finger and proximal transverse crease of the hand on maximal finger flexion was estimated at 2 cm. During flare-ups, flexion was estimated as follows: 90 degrees MCP; 50 degrees PIP; and 20 degrees DIP. Pain and lack of endurance were noted as contributing factors to the increased loss of function. The gap between the finger and proximal transverse crease of the hand on maximal finger flexion was estimated at 2 cm.

The Veteran was afforded a VA peripheral nerves conditions examination in June 2021. A diagnosis of left ulnar nerve paralysis was noted. Moderate constant pain, paresthesias, and numbness of the bilateral upper extremities was noted. Decreased light touch sensation of the bilateral hands was noted. Mild, incomplete paralysis of the left ulnar nerve was noted. The VA examiner stated that the Veteran's left index ulnar nerve peripheral neuropathy is mild in nature, noting that he cannot complete full flexion of the left index finger due to pain, as opposed to nerve damage. Normal sensory capacity and strength of 4/5 was noted. Good proprioception of the left hand was noted.

The Veteran was afforded a VA hand and finger conditions examination in March 2022. A diagnosis of left index finger injury with limited flexion was noted. The Veteran reported impaired ability to grasp objects firmly with his left hand and having constant index finger pain. He further reported flare-ups of severe pain 4 to 5 times per year, lasting a week at a time, and during which he cannot use the hand to grip anything. Initial active and passive range of motion was measured as follows: 90 degrees MCP flexion; 90 degrees PIP flexion; and 30 degrees DIP flexion. A 2 cm gap between the index finger and proximal transverse crease of the hand on maximal finger flexion was noted. Tenderness to palpation at the PIP joint and radial distal index finger was noted. Pain was noted upon all measurements. No additional loss of function or range of motion was noted after repetitive use testing. Noting that pain would be a factor of additional disability, the examiner estimated that after repeated use over time, range of motion would be measured as follows: 90 degrees MCP flexion; 70 degrees PIP flexion; and 20 degrees DIP flexion. A 2.5 cm index finger gap was estimated. Noting that pain would be a factor of additional disability, the examiner estimated that during flare-ups, range of motion would be measured as follows: 90 degrees MCP flexion; 50 degrees PIP flexion; and 20 degrees DIP flexion. A 2.5 cm index finger gap was estimated. It was noted that his finger condition limits him in pushing, pulling, or carrying objects that weigh 5 pounds of more, or doing activities that require rapid index finger movements or tight hand grip.

Based on the above, the Board finds that the disability is primarily manifest by moderate pain, paresthesias, impaired light touch sensation, and numbness of the left upper extremity. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in
ness of the left upper extremity. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for left upper extremity nerve damage associated with left index finger scar. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to a separate rating right chest shell fragment wound, muscle group II, minor arm.

The Board notes that the Veteran was service connected for right chest shell fragment wound, muscle group I, minor arm (DC 5301), prior to August 2, 2004, at which time he became service connected for right chest shell fragment wound, muscle group II, minor arm (DC 5302). The Board further notes that numerous VA examination reports indicate that both muscle groups are indicated as having been injured in service. However, none of these reports sufficiently differentiates the symptoms caused by each of these injuries.

As such, the Board finds that a remand is required to obtain an addendum opinion to differentiate, if possible, the symptoms caused by the Veteran's muscle group II injuries as opposed to muscle group I.

2. Entitlement to a TDIU is remanded.

In a September 2008 VA examination report, the Veteran asserted that he cannot work due to pain and weakness in his right arm. As such, the Board finds the issue of entitlement to a TDIU has been raised by the record. See, Rice v. Shinseki, 22 Vet. App. 447 (2009).

However, the Veteran has not submitted any VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and has not otherwise provided a detailed history of his employment. The RO has not undertaken development related to this issue.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether a separate disability rating for the Veteran's residuals of right chest shell fragment wound, muscle group I, minor arm, is appropriate.

The examiner must differentiate they symptoms, and functional impacts, caused by muscle group I from those caused by muscle group II, or explain why such is not possible.

2. Solicit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review.

C. TRUEBA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Keeley, Brian

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.

1303.

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