BVA9505548 DOCKET NO. 93-08 240 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased disability evaluation for fracture of the left humerus, status post open reduction internal fixation (ORIF) with mild radial nerve palsy, history of bursitis of the left elbow, currently rated 20 percent disabling. 2. Entitlement to a compensable evaluation for status post fracture right humerus, healed. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The appellant had active service from July 1986 to May 1990. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an October 1990 rating decision of the Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), in Roanoke, Virginia, which granted service connection for fracture of both arms. The RO granted a 20 percent disability evaluation for fracture of the left humerus, status post ORIF with mild radial nerve palsy, history of bursitis of the left elbow, and a noncompensable evaluation for status post fracture of the right humerus. The case was later transferred to the RO in Pittsburgh, Pennsylvania. The veteran has raised the issue of entitlement to a total rating based on individual unemployability. This issue is not in appellate status and we refer it to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased evaluation is warranted for residuals of the left and right arm fractures. He states that he lost two jobs and was not allowed to re-enlist because of an inability to lift heavy objects resulting from his service- connected disabilities. The veteran says that he has increased pain and limitation of function in both of his arms. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for entitlement to an increased disability evaluation for fracture of the left humerus, status post ORIF with mild radial nerve palsy, history of bursitis of the left elbow, currently rated 20 percent disabling, but that the evidence supports the grant of a separate 10 percent rating for a painful scar of the left elbow. It is also the decision of the Board that the preponderance of the evidence is against the claim for a compensable evaluation for status post fracture right humerus, healed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. Residuals of the fracture of the left humerus, status post ORIF with mild radial nerve palsy, history of bursitis of the left elbow, is manifested by normal range of motion of the shoulder, elbow, hand, and wrist, normal strength, loss of touch sensation in the left forearm to the index finger, and minimal scar tenderness. 3. Status post fracture right humerus, healed, is manifested by normal range of motion and strength, and no scar tenderness. 4. This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render inapplicable the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 20 percent for left humerus, status post ORIF with mild radial nerve palsy, history of bursitis of the left elbow are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, 4.69, 4.71a, 4.124a, Diagnostic Codes 5201, 5202, 8514 (1994). 2. The criteria for a 10 percent disability evaluation for painful scar of the left elbow are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.118, Diagnostic Code 7804 (1994); Esteban v. Brown, 6 Vet.App. 259, 262 (1994). 3. The criteria for a compensable evaluation for status post fracture right humerus, healed, are not met. 38 U.S.C.A. §§ 1155, 5108 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes 5201, 5202 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. 38 U.S.C.A. § 5107 (West 1991). Disability evaluations are determined by the application of the schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The regulations provide that each disability be viewed in relation to its history. 38 C.F.R. Part 4, § 4.1 (1994). Where there is a question as to which of two evaluations shall be applied, the higher will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (1994). 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. Part 4, § 4.20 (1994). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. Part 4, § 4.31 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. Part 4 §§ 4.10, 4.40, 4.45 (1994). FACTUAL BACKGROUND Service medical records show that the veteran had chronic olecranon bursitis of the left arm in February 1989, for which he underwent removal of the chronic inflamed bursa of the left olecranon in March 1989. Later, he was involved in a motorcycle accident and sustained bilateral humeral fractures. As a result, he required an ORIF procedure on the left arm. The right arm reportedly healed well without need for later treatment. The veteran continued to undergo treatment and therapy after his surgery. According to August 1989 clinical notes, he sustained left radial nerve palsy at the time of the fixation of the nondominant humerus[,but that the current p]hysical examination revealed full finger extension. The extensor carpi ulnaris and extensor digiti minimus, radial wrist extensors, thumb outcroppers, and proprius muscles were each 4/5. The examiner reported "In reality all of his radial nerve has returned." A report, dated in April 1990, states that, while the veteran had initially suffered left radial nerve palsy, there was a return of all motor function. The veteran's only complaint was of pain at the lower excision site, especially with pull-ups. Examination of the left arm revealed a well-healed lateral excision with hypertrophic scar formation. The elbow had full range of motion. The motor strength of the biceps and triceps, effective dynamic compliance, and both the extensor carpi radialis brevis and longus were 5/5. There was mild decrease to light touch sensation over the posterior antebrachium nerve distribution. Decreased pin prick sensation was also noted. X-rays were performed and showed that the hardware was in place. The fracture appeared well-healed. The assessment was stable status post ORIF left humerus, "motor of radial 100 percent", mild decrease in sensory distribution, and pain secondary to soft tissue scar formation. After separation from service in October 1990, the RO granted a 20 percent disability evaluation for fracture of the left humerus status post ORIF with mild radial nerve palsy, history of bursitis of the left elbow and a noncompensable evaluation for status post fracture right humerus, healed. The record contains post-service VA outpatient treatment reports dated from April to September 1991. A report dated in May 1991 shows that there was right tender olecranon fossa, and full elbow extension on the right. There was positive tenderness of the left arm scar, and wrist and finger extension was 5/5. The impression was partial radial nerve injury. EMG and nerve conduction studies in July 1991 showed residual left radial nerve neuropathic changes. The sensory responses were obtainable, although low amplitude, and the majority of the muscles showed regeneration and potentia, with a reduced recruitment pattern. The nerve conduction studies of the right median and ulnar nerve were within normal limits. In August 1991, there was tenderness of the incision. Motor strength was 5/5 for biceps, triceps, wrist extension, and pinch grip. During his physical examination, the veteran reported a history of continued pain and numbness with activity, especially with long driving, parking, and lifting heavy objects. He said that his pain had increased since July and was accompanied by numbness. The examiner's impression was radial nerve with possible compression. A report of September 1991 noted complaints of pain and weakness. It was recorded that studies showed residual radial nerve neuropathy. On physical examination, there was a well-healed incision. Motor strength was intact. The impression was healing of the radial nerve injury. An x-ray of the left arm showed a healed fracture of the humeral diaphysis with internal fixation device. The veteran appeared at the RO for a personal hearing in November 1991. He complained that he had a little bit of pain in the right arm when it was cold outside. He stated that it hurt when he lifted things and that he could feel where a callus had built up at the point of fracture. The veteran said that he was only able to lift 10 pounds without pain. He said that he had trouble pushing, but not pulling with the right arm. He indicated that his major arm and hand were on the left. He denied any sensation loss in the right arm. With respect to the left arm, the veteran testified that he suffered numbness in his arm to his fingers with use or contact with the nerves. He said that he could not throw a baseball or participate in sports, except for running. He also noticed numbness with driving. Numbness in his fingers was located in his forefinger and thumb on the top of his hand. The veteran said that prolonged writing produced pain and numbness. He testified that he was unable to lift more than 5 pounds with his left arm because of pain. He stated that he has a sharp pain in his left arm, which becomes more severe with use. He said that when he straightened out his arm it felt tight, his skin became taut, and it started to hurt. The veteran said that sometimes if he slept on his arm, it would be numb all the next day. The veteran reported that he was not working at the time of the hearing. He said that after service, he welded in a shipyard until he was released from work because of left arm numbness. He said that, on one occasion, a spark lit on his shirt and burned his arm without him feeling it. He said that he was subsequently let go since he was considered a hazard to himself and others. He stated that he was also laid off from his next job because he could not lift. He said that he was currently in vocational rehabilitation. The veteran was afforded a VA examination in February 1992. He reported a recent history of recurrent tenderness in the left arm just lateral to the elbow region and the overlying muscle groups, and he stated that the bone ached as well at times. He stated that the lateral muscle tenderness was mainly when he extended his arm fully, but that he did have good range of motion of both his elbows. He said there was also some pain in the left arm on lifting. Occasionally, if lying on his left arm, or keeping it straight in one position, it would become numb, and, the examiner recorded, "there would be a radiation nerve distribution over the dorsum of the left forearm and into the index finger and thumb." He said that his right arm was less of a problem, with only some mild aching on weather changes or if he reclined on it. He said that the left scar was also slightly tender. Examination of the skin and scars revealed that the left elbow scar was 8 inches in length. There were no obvious complications with only minimal slight tenderness of palpitation subjectively noted. The right arm scar was 2 and 1/2 in length and without any complications or tenderness. The veteran also underwent examination of the peripheral nerves. He had full range of motion of the shoulder, elbows, wrists, and hands. Elbow flexion was to 145 degrees, and in extension to 0 degrees, bilaterally. Wrist dorsiflexion was to 70 degrees and palmar flexion was to 70 degrees, bilaterally. There was ulnar deviation to 45 degrees, bilaterally, and radial deviation to 20 degrees, bilaterally. Forearm pronation and supination were normal. The hand grasp strength was 5 out of 5, bilaterally. Motor strength in the forearm and arm, bilaterally, and the pulses were normal. There was no obvious deformity or effusion of the joints. There was some slight numbness and loss of touch sensation in the left forearm on the dorsum and this extended to the left index finger. The fingers had normal range of motion, however, and pulses. There was no obvious swelling or deformity of the upper extremities, and there was no angulation, false motion, or shortening. There was also no inter-articular involvement which was obvious at that time. ANALYSIS The record supports a finding that the veteran is left-handed. Accordingly, the veteran's residuals of fracture of the left humerus will be considered major in rating the disabilities. See 38 C.F.R. Part 4, § 4.69 (1994). Limitation of motion of the arm at shoulder level warrants a 20 percent evaluation. Limitation of motion of the arm midway between the side and shoulder level of the minor arm warrants a 20 percent evaluation, and limitation of motion of the major arm warrants a 30 percent evaluation. Limitation of motion of the minor arm to 25 degrees from the side warrants a 30 percent evaluation. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5201 (1994). Other impairment of the humerus with malunion and moderate deformity of either the major or minor arm warrants a 20 percent evaluation. Other impairment of either the major or minor arm with recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent evaluation. With malunion of the humerus with marked deformity of the minor arm, a 20 percent evaluation is warranted, and with marked deformity of the major arm, a 30 percent evaluation is warranted. Recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all movements of the minor arm warrants a 20 percent evaluation, and for the major arm, a 30 percent evaluation is warranted. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5202 (1994). Superficial scars, which are tender and painful on objective demonstration warrant a 10 percent evaluation. Other scars are rated on the basis of limitation of function of the part affected. 38 C.F.R. Part 4, § 4.118, Diagnostic Codes 7804, 7805 (1994). With respect to the veteran's residuals of fracture of the left humerus, the rating criteria associated with diseases of the peripheral nerves may also be considered. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. Part 4, § 4.124a (1994). Mild incomplete paralysis of the musculospiral nerve (radial nerve) considered either major or minor, warrants a 20 percent evaluation. Moderate incomplete paralysis, considered minor, warrants a 20 percent evaluation. Moderate incomplete paralysis, considered major, warrants a 30 percent evaluation. 38 C.F.R. Part 4, § 4.124a, Diagnostic Code 8514 (1994). 1. Residuals of the Fracture of the Left Humerus An evaluation in excess of 20 percent for the residuals of the fracture of the left humerus is not warranted under Diagnostic Code 5201, because full range of motion of the arm was noted during the VA examination. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5201 (1994). We also note that we have not evaluated the veteran's disability under the criteria for limitation of the elbow, wrist, forearm, or hand, since such limitation of motion was not noted to result from the disability. See 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5206-5213, 5215 (1994). The residuals of the fracture of the left humerus were not noted to result in symptoms equatable to malunion of the humerus with marked deformity or recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all movements. The examiner stated that there was no obvious deformity of the joint or effusion. Accordingly, a 30 percent disability evaluation is not warranted under Diagnostic Code 5202. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5202 (1994). Next, we consider the residuals of the fracture of the left humerus under the rating criteria for incomplete paralysis of the radial nerve. The positive evidence includes a documented history of residual radial nerve palsy in the service records and post- service outpatient treatment reports. Nerve conduction studies, performed in July 1991, showed residual neuropathic changes (sensory responses were obtainable but with low amplitude, and the majority of muscles showed regeneration potentials but a reduced recruitment pattern). In addition, the veteran testified, during his hearing, that he suffers pain and numbness of the left arm and hand with certain activities such as driving, and after having slept reclining on the arm. He said that as a result of pain and numbness, he cannot throw a softball and play in other sports. However, the VA examiner found normal strength in the forearm and arm with full range of motion. Pain on motion was not elicited. There was "some slight numbness and loss of touch sensation in the left forearm on the dorsum which extended to the left index finger." This opinion weighs against a finding of moderate incomplete paralysis of the major hand, which would warrant the next higher rating. The examiner's description of the neurologic findings as "slight" is more valuable in rating the degree of peripheral nerve disability than the veteran's testimony since the examiner has superior medical knowledge and expertise. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The VA examiner's opinion also antedates the earlier outpatient records. Therefore, under the rating schedule, no more than a 20 percent evaluation is in order for mild incomplete paralysis of radial nerve affecting either the major or minor hand/arm. 38 C.F.R. Part 4, § 4.124, Diagnostic Code 8514 (1994). For the stated reasons and bases, we find that the disability does not more closely approximate the next higher rating under the various diagnostic criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, 4.69, 4.71a, 4.124a, Diagnostic Codes 5201, 5202, 8514 (1994). Notwithstanding this conclusion, we note that, upon examination of the veteran's left arm, there was an eight inch scar on the left elbow, extending up the arm, which was well-healed. There was some minimal tenderness on palpitation, subjectively claimed. A veteran can be rated separately for different manifestations of the same injury, where "none of the symptomatology for any one of [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute pyramiding prohibited by 38 C.F.R. § 4.14 (1993). Accordingly, the appellant is entitled to an additional 10 percent disability evaluation for his painful scar. 38 C.F.R. Part 4, § 4.118, Diagnostic Codes 7804 (1994); See Esteban v. Brown, 6 Vet.App. 259, 262 (1994). 2. Residuals of the Fracture of the Right Humerus The history of the residuals of the fracture of the right humerus shows that the fracture was well-healed during service. The veteran stated during his hearing and physical examination that it gave him much less trouble than the left arm. Examination of the right arm revealed normal strength and ranges of motion. The scar was nontender and without complications. A compensable evaluation is not warranted on the basis of limitation of motion under Diagnostic Code 5201, or on the basis of tenderness of the healed scar, Diagnostic Code 7804, 7805. Neither malunion or deformity of the right arm, considered minor, was demonstrated. Therefore, a compensable evaluation under Diagnostic Code 5202 is not warranted. While the veteran's testimony that he has disabling right arm symptoms must be given some weight, the VA examination findings are more probative as to the status of the disability. Espiritu, 2 Vet.App. at 492. Accordingly, a compensable disability evaluation for status post fracture of the right humerus is not warranted. 38 U.S.C.A. §§ 1155, 5108 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes 5201, 5202 (1994). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether they were raised by the appellant or not as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The evidence does not suggest that the veteran's disability is so unusual so as to render impractical the application of the regular schedular standards demonstrated, such as by marked absence from employment shown to be solely due to the service-connected disability or frequent periods of hospitalization, which would warrant the application of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). ORDER 1. Entitlement to an increased disability evaluation for fracture of the left humerus status post open reduction and internal fixation with mild radial nerve palsy, history of bursitis left elbow, currently rated 20 percent disabling, is denied. 2. A 10 percent disability evaluation for painful scar of the left elbow is granted, subject to regulations governing the payment of monetary benefits. 3. Entitlement to a compensable evaluation for status post fracture right humerus is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.