judge_norm: JONATHAN HAGER

condition: shoulder

text:
Citation Nr: 25005000
Decision Date: 04/14/25	Archive Date: 04/14/25

DOCKET NO. 18-44 754
DATE: April 14, 2025

ORDER

Entitlement to an earlier effective date of July 12, 1986, the day after separation from service, for the award of service connection for post operative left shoulder dislocation is granted.

Entitlement to an earlier effective date of July 12, 1986, for the award of service connection for post operative left shoulder humerus dislocation is granted.

FINDINGS OF FACT

1. The Veteran submitted a claim for service connection for left shoulder disability in August 1986, within a year of his July 11, 1986, separation from service. The claim was denied in a February 1987 rating decision that the Veteran did not appeal and new and material evidence was not received within a year of issuance of this decision.

2. Service treatment records (STRs) that are relevant to the claim were associated with the claims file in March 2017, and showed in-service treatment for left shoulder injury.

3. An August 2017 rating decision granted service connection for post operative left shoulder dislocation effective December 22, 2016, and post operative left shoulder humerus dislocation effective August 18, 2017.

4. Entitlement to the benefits sought arose prior to separation from service.

CONCLUSIONS OF LAW

1. The criteria for an effective date of July 12, 1986, for the grant of service connection for post operative left shoulder dislocation have been met. 38 U.S.C. � 5110; 38 C.F.R. �� 3.156 (c), 3.400.

2. The criteria for an effective date of July 12, 1986, for the grant of service connection for post operative left shoulder humerus dislocation have been met. 38 U.S.C. � 5110; 38 C.F.R. �� 3.156 (c), 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1982 to July 11, 1986.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for post operative left shoulder dislocation, effective December 22, 2016, and post operative left shoulder humerus dislocation, effective August 18, 2017.

The Veteran timely appealed the August 2017 rating decision and in February 2023, the Board issued a decision which granted an earlier effective date of December 22, 2016, for post operative left shoulder humerus dislocation, and denied entitlement to an effective date prior to December 22, 2016 for post operative left shoulder dislocation and post operative left shoulder humerus dislocation.

The Veteran appealed the February 2023 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In a September 2024 Memorandum Decision, CAVC vacated the Board's February 2023 denial of effective date earlier than December 22, 2016, for post operative left shoulder dislocation and post operative left shoulder humerus dislocation, and remanded the matters to the Board for readjudication.

Effective Date

Under 38 C.F.R. � 3.156 (c)(1), reconsideration of a claim is warranted at any time after VA issues a decision on the claim and receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. If reconsideration is granted, then if an award is made based in any part on the newly received service department records, the effective date of the award is the date entitlement arose or the date VA received the previously decided claim, whichever is later. See Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014) (describing the multi-step process in applying 38 C.F.R. � 3.156 (c)).

The referenced "official service department records" include service records that are related to a claimed in-service event, injury, or disease, additional service records forwarded by the Department of Defense or the service department to VA, and declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. � 3.156 (c)(1).

Effective date prior to December 22, 2016, for the grant of service connection for post operative left shoulder dislocation and post operative left humerus shoulder dislocation

The Veteran contends that he is entitled to an effective date of August 19, 1986 for service connection for his post operative left shoulder dislocation and post operative left shoulder humerus dislocation, pursuant to 38 C.F.R. � 3.156 (c). Specifically, the Veteran contends that relevant service department records were added to the record following the final February 1987 rating decision that denied service connection for a post operative left shoulder dislocation and post operative left shoulder humerus dislocation, warranting the assignment of the day after discharge as the effective date for service connection. For the reasons below, the Board agrees.

The effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. � 5110 (a); 38 C.F.R. � 3.400. Moreover, under 38 C.F.R. � 3.400 (b)(2)(i), the effective date will be the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.

As relevant here, an exception to this rule applies in the case of newly discovered service department records. 38 C.F.R. � 3.156 (c). Pursuant to that regulation, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim.

By operation of � 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014). In Kisor v. McDonough, the United States Court of Appeals for the Federal Circuit held that in order to be "relevant" within the context of 38 C.F.R. � 3.156 (c)(1), a service department record must be relevant to the issue that was "dispositive against the veteran in the VA adjudication of the claim sought to be reconsidered and, in that way, bear on the outcome of the case." 995 F.3d 1316, 1322 (Fed. Cir. 2020).

Here, the RO originally denied service connection for residuals of "left shoulder injury" in a February 1987 rating decision issued in response to an August 1986 claim. The February 1987 rating decision references STRs; however, the rating decision does not explicitly indicate that indicate that STRs for the period from April 1982 to July 1986 were reviewed. Additionally, VBMS/Caseflow does not indicate that STRs were received prior to the February 1987 rating decision. Notably, the record contains requests for service medical records in September 1986 and November 1986, and a VA letter dated December 1986 which informed the Veteran that STRs had not yet been obtained and requested the Veteran to provide any STRs in his possession. There is no indication that STRs were received; therefore, it is unclear if complete STRs were associated with the record prior to the February 1987 rating decision.

In December 2016, the Veteran filed a claim for service connection for a left shoulder disability. The Veteran's STRs were associated with the file in March 2017 and April 2017, seemingly following December 2016 and February 2017 requests for service medica records. The Board notes that although the August 2017 rating decision lists "Service treatment and Personnel records representing active service from April 12, 1982 to July 11, 1986, received February 2, 1988, March 9, 2017 and April 3, 2017" only a Certificate of Discharge DD Form 214 submitted by the Veteran was associated with the file in February 1988. In August 2017, the RO granted service connection for post operative left shoulder dislocation and post operative left shoulder humerus dislocation. The grant of service connection was based in part upon the STRs associated with the claims file in March and April 2017.

The Board notes that 38 C.F.R. � 3.156 (c)(1) requires VA to reconsider the merits of a Veteran's claim whenever it associates relevant service department records with the claims file; the RO did not do that in this case. Furthermore, an award granted based on all or part of newly added records is entitled to become effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. See 38 C.F.R. � 3.156 (c)(3). Only if benefits are granted based on this reconsideration must VA consider an earlier effective date under the provisions of 38 C.F.R. � 3.156 (c)(3) and (4).

The August 2017 grants of service connection in this case fall within the ambit of 38 C.F.R. � 3.156 (c)(3) because the claims were granted based in part on the additional STRs received in March and April 2017, which showed in-service treatment for left shoulder. That regulation provides that an award made pursuant to 38 C.F.R. � 3.156(c)(1) "is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim."  An effective date of the day after separation from service or date entitlement arose is warranted under 38 C.F.R. � 3.400(b)(2)(i) if the claim was filed within a year of separation.  The evidence shows that the Veteran had left shoulder injury in September 1982 and as noted on the December 1986 VA examination, left shoulder pain and limitation of motion had continued since separation from service.  As the claim was filed within a year of separation and entitlement arose prior to separation, an effective date of July 12, 1986, the day after separation from service, is warranted for post operative left shoulder dislocation and post operative left shoulder humerus dislocation.  This is the earliest possible effective date and the effective date requested by the Veteran's representative in the CAVC Brief.

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Hemphill, 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.


series: legacy

judge_norm: MATTHEW W BLACKWELDER

judge_role: Veterans Law Judge

disposition: remanded

condition: knee

text:
Citation Nr: 25006000
Decision Date: 05/01/25	Archive Date: 05/01/25

DOCKET NO. 15-14 803
DATE: May 1, 2025

REMANDED

The claim for a disability rating in excess of 10 percent for limitation of motion of the right knee is remanded.

The claim for a disability rating in excess of 10 percent for limitation of motion of the left knee is remanded.

The claim for a disability rating in excess of 10 percent for instability of the right knee is remanded.

The claim for a disability rating in excess of 10 percent for instability of the left knee is remanded.

REASONS FOR REMAND

The Veteran had active service in the Army from October 1994 to January 1996.

The Board notes that the procedural history of this case was previously addressed in the November 2023 Board decision that denied the Veteran's claims.  That procedural history is incorporated herein by reference.

Since the November 2023 Board decision, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2024, the Court issued an Order vacated the decision and remanded it for compliance with a September 2024 Joint Motion for Remand (JMR).

The Veteran requested a virtual hearing before the Board in November 2024.  She was afforded a new Board hearing in February 2025.  A transcript of the hearing has been associated with the claims file.

The Board finds that the Veteran has indicated possible worsening of her disabilities through her testimony at the Board hearing detailing her current and developing symptoms.  Therefore, given the Veteran's claims of worsening, a new VA examination is warranted.

Furthermore, the Veteran testified that she had received treatment from private healthcare providers and not at the VA.  However, the most recent private treatment records are dated from 2013.  Therefore, an attempt should be made to obtain any outstanding private treatment records since 2013.

The matters are REMANDED for the following action:

1. Obtain and associate with the Veteran's claims file outstanding private treatment records, specifically those from Dr. Knutson and Dr. Hogan beginning as early as 2013.  It is acknowledged that the Veteran submitted physical therapy records from 2022 and 2023, but records prior to 2022 are still needed.

2. Then, schedule the Veteran for a VA examination to assess the severity of her service-connected bilateral knee disabilities.  The examiner should:

a)	Provide an evaluation of the current severity of the Veteran's knee disabilities.

b)	To the extent possible, provide a retrospective estimation the range of motion in the Veteran's bilateral knees were she to be without the ameliorative impact of medication from January 2013 to the present.  If such cannot be done, it should be explained why.  In providing the opinion, the examiner should review the February 2025 Board hearing transcript and the Veteran's lay statements regarding the progression and current severity of her symptoms.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Yoo, 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.


judge_norm: KRISTY L ZADORA

disposition: denied

text:
Citation Nr: 25007000
Decision Date: 05/22/25	Archive Date: 05/22/25

DOCKET NO. 17-17 569
DATE: May 22, 2025

ORDER

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

Entitlement to an initial compensable rating for left arm scar, status-post operative left biceps tendon repair is denied.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's left arm ruptured distal bicep more closely approximates moderately severe symptoms of Muscle Group V to include the loss of power, weakness, lowered threshold of fatigue and uncertainty of movement.

2. Throughout the period on appeal, the Veteran's left arm scar status-post operative left biceps tendon repair was not manifested by a characteristic of disfigurement and was not painful or unstable at any time.

CONCLUSIONS OF LAW

1. The criteria for 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.

2. The criteria for an initial compensable rating for left arm scar, status-post operative left biceps tendon repair have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 4.1-4.14, 4.114, Diagnostic Code 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty 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.

These matters comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 and June 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

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 Board also remanded the claim for a compensable rating for left arm scar to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran subsequently appealed the initial 30 percent rating for left arm ruptured distal bicep tendon 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 before the Board in May 2023, at which time the appeal was remanded to the AOJ for further development. Specifically, the 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 were 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 finds that there has been substantial compliance with its May 2023 remand.

The case was most recently before the Board in May 2024 when it denied a rating in excess of 30 percent for left arm ruptured distal bicep residuals. The Veteran again appealed the 30 percent rating for left arm ruptured distal bicep tendon decision to the Court. In a February 2025 Order, the Court granted a Joint Motion Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. The parties agreed that remand was warranted because the Board erred when it failed to provide an adequate statement of reasons or bases to support its decision because it did not discuss evidence that may support a higher rating and that the Board failed to address favorable evidence relevant to this finding. Specifically, the May 2017 VA examination report that documents "palpation shows loss of deep fascia."

A March 2025 letter to the Veteran informed him that the Court had issued a decision that remanded (sent back) his case to the Board for readjudication and issuance of a new decision and that the Board will wait to make a decision in his appeal for 90 days from the date of this letter to provide him with the opportunity to submit additional argument and/or evidence in support of the appeal or to request a hearing with a Veterans Law Judge.  In a March 2025 submission, the Veteran requested that the Board adjudicate his case without remand to the AOJ for review of the additional evidence that he was submitted in his appeal and that he waived any remaining time to submit additional evidence or argument. The Board notes that additional evidence was submitted with the March 2025 response from the Veteran. The Veteran's representative submitted an Informal Hearing Presentation in April 2025. The Board will therefore proceed with its adjudication.

Increased Rating Criteria

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. � 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. � 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. � 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. � 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. � 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. � 4.10.

The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. � 3.159(a).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. � 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). 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).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

Additionally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU rating, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim. The evidence of record documents the Veteran is currently employed full-time as a facility maintenance supervisor and does a lot of building maintenance. Further, he has not asserted at any point in time that he is unable to secure and maintain employment due to his service-connected left arm ruptured distal bicep tendon repair and residual scar. As such, Rice is not applicable in this case.

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

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. Indeed, the Veteran contends 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.

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 left-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).

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 0 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.

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.

At the outset, the Board acknowledges the May 2017 VA examination that documents a single episode of palpation showed loss of deep fascia.  Such finding may suggest a severe muscle disability. See 38 C.F.R. � 4.56(d)(3). The Board, however, observes that prior VA examinations as well as subsequent VA evaluations document and/or show no findings of the loss of deep fascia on palpation. Moreover, the Board finds that collectively the evidence shows 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 such, this isolated May 2017 VA examination finding alone is insufficient to warrant a higher rating for the Veteran's left arm ruptured distal bicep tendon. 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. Collectively, the VA examination reports consistently demonstrate that during the appeal period the Veteran 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; 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. Although the May 2017 VA examination documents a symptom that would suggest severe disability, i.e., palpation shows loss of deep fascia and some loss of muscle substance, as noted, objective findings with physical examination of the left arm prior to May 2017 and subsequent from that examination show no loss of deep fascia with palpation. Thus, the Board finds that collectively a review of all the symptomatology more closely approximates moderately severe muscle disability.

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.

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 in a June 2023 statement the Veteran reports he experiences 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. The Board notes the VA examiners found that the Veteran would have some impairment at work due to his increased fatigability and pain. However, the Veteran, although with some difficulty, has been able to perform his activities as a facility 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 weightlifting in the left bicep, albeit with less strength than the right side. These signs and symptoms more closely approximates moderately severe impairment to Muscle Group V involving the major extremity and support the 30 percent rating already assigned. Moreover, the muscle strength testing for the left arm during the appeal is near normal to normal at 4-5/5.

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 any additional alternative diagnostic code. Notably, a July 2022 rating decision assigned a separate 30 percent rating for left arm neuritis as secondary to left bicep disability.

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, numbness, fatigue, and loss of power 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, although his statements are competent, the Board assigns more probative weight to the competent medical evidence of record.

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; 38 C.F.R. � 3.102; Lynch v. McDonough, supra.

2. Entitlement to an initial compensable rating for left arm scar, status-post operative left biceps tendon repair is denied.

The Veteran contends that a compensable rating is warranted for his left arm scar.  Indeed, he asserts that he is entitled to a 20 percent rating for his scar because that rating is consistent with neuralgia. Hearing Tr., at Page 7. The Veteran's left arm scar is currently rated noncompensable under Diagnostic Code 7802.

Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. � 4.118.

The Schedule of ratings for the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only (former code); however, for the period beginning August 13, 2018 the Board will consider both the old and amended version (amended code) of the diagnostic codes and rate based on whichever is most favorable to the Veteran. The relevant diagnostic codes in this case were not significantly changed.

Diagnostic Code 7800 deals with scars and disfigurement of the head, face, or neck and was not revised by the recent regulatory amendments. A 10 percent rating is assigned with one characteristic of disfigurement. A 30 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement.

Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 square centimeters) or greater warrants a 10 percent rating. 38 C.F.R. � 4.118. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id.

Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. � 4.118. Note 2 to Diagnostic Code 7802, in relevant part, instructs, "if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code." Diagnostic Code 7802 was otherwise unchanged 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.

Characteristics of disfigurement include: Scar 5 or more inches (13 or more centimeters) in length; Scar at least one-quarter inch (0.6 centimeters) wide at widest part; Surface contour of scar elevated or depressed on palpation; Scar adherent to underlying tissue; Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and, Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).

Diagnostic Code 7804 provides for a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is assigned where there are three or four scars that are unstable or painful. A 30 percent rating is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation.

Under the new and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804.

Turning to the evidence, the Veteran was afforded a VA examination in June 2011. Upon evaluation, a left forearm scar secondary to surgery was noted. The entire scar measures 18.5 centimeters by 0.2 centimeters. The scar is not painful on examination. There is no skin breakdown. This is a superficial scar with no underlying tissue damage. Inflammation is absent. Edema is absent. There is a keloid formation described as a S-shaped raised area. The scar is not disfiguring. The scar does not limit the Veteran's motion. There is no limitation of function due to the scar.

The Veteran was afforded a VA examination in December 2016. Upon evaluation, a left arm scar was noted. Scar is not painful or unstable with frequent loss of covering of skin over the scar. The left arm linear scar measured 3.0 centimeters by 0.1 centimeters. The scar is not disfiguring or results in limitation of function. No other pertinent physical findings, complications, signs and/or symptoms (such as muscle or nerve damage) associated with any scar. There was no functional impact due to the left arm scar.

The Veteran was afforded a VA examination in April 2022. Upon evaluation a left arm scar was noted. The Veteran reported numbness along the scar line. The scar was not painful or unstable. The left bicep scar measured 8.0 centimeters by 0.5 centimeters, and a total area measured approximate 4.0 centimeters. There was no functional impact due to the left arm scar.

The Veteran was afforded a VA scar examination in October 2023. Upon evaluation a left arm scar was noted. The scar was not painful or unstable. The left bicep scar measured 23.0 centimeters by 0.8 centimeters, and a total area measured approximate 6.9 centimeters. The scar did not have underlying tissue damage. There was no functional impact due to the left arm scar.

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 scar was not due to burns, not painful, and not unstable. The scar measured 19.0 centimeters by 1.0 centimeter. The scar did not have underlying tissue damage. The was no functional impact due to the left arm scar.

Based on the foregoing, the Board finds that an initial compensable rating for his left arm scar is not warranted at any time during the period on appeal.

In that regard, there is no objective evidence to show that the Veteran's left arm scar related to his left bicep surgery was painful or unstable at any time. In addition, the Veteran's scar measured at the most 6.9 square centimeters; and, thus, the Veteran's scar did not have any characteristics of disfigurement that warrant a compensable rating at any time. The VA examination reports indicated the Veteran's scar was not painful nor unstable. The scar did not have underlying tissue damage. There is no evidence that the scar was productive of characteristics of disfigurement and was not located on the head, face, or neck at any time during the period on appeal. Here, the evidence of record does not demonstrate that the Veteran has a left arm scar related to his left bicep surgery that would warrant a compensable rating at any time. 38 C.F.R. � 4.118, Diagnostic Code 7802.

The Board acknowledges the Veteran's reports of relevant observable symptoms. Layno v. Brown, supra. However, the Veteran's lay statements and testimony are consistent with the assigned ratings. To the extent that the Veteran believed that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. As noted, the Veteran indicated that a 20 percent rating is warranted because of neuralgia. As previously discussed above, the Veteran has been granted a separate 30 percent rating for neuritis as a secondary residual of left bicep surgery.

(Continued on the next page)

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The Board has considered whether a staged rating under Hart v. Mansfield, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra.

Accordingly, the Board finds that an initial compensable rating for the left arm scar, status-post operative left biceps tendon repair is not warranted. The appeal is denied. 38 U.S.C. � 5107; 38 C.F.R. � 3.102; Lynch v. McDonough, supra.

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. McPhaull, 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.


judge_norm: JOHN J CROWLEY

condition: eye

text:
Citation Nr: 25008000
Decision Date: 06/16/25	Archive Date: 06/16/25

DOCKET NO. 16-15 242
DATE: June 16, 2025

ORDER

Entitlement to Veteran Readiness and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38 of the United States Code, is denied.

FINDINGS OF FACT

1. During the appeal period, the Veteran had service-connected disabilities with a combined disability rating of 100 percent.

2. At the time of her December 2015 Application for VR&E benefits, the Veteran had a Bachelor's degree in Education and prior experience working as a paraprofessional educator.  She also had marketable and transferable skills.

3. The evidence persuasively establishes that, during the period here at issue, the Veteran was unemployed but had overcome the effects of her vocational impairment because she was qualified for employment in a suitable occupation consistent with her aptitudes, interests, and abilities.

4. During the period under consideration, the Veteran is not shown to have had an employment handicap; the evidence persuasively establishes that she had overcome any impairment to employability to which her service-connected disabilities had substantially contributed.

CONCLUSION OF LAW

The criteria for entitlement to VR&E benefits were not met during the period on appeal. 38 U.S.C. �� 3100, 3101, 3102; 38 C.F.R. �� 21.1, 21.32, 21.33, 21.35, 21.40, 21.50, 21.51.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had honorable active-duty service in the United States Army from June 1997 to September 1997, June 1998 to September 1998, January 2003 to January 2006, and November 2010 to April 2015.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 23, 2015, decision issued by a Department of Veterans Affairs (VA) Vocational Rehabilitation Counselor (VRC).  It remains in the Legacy appeal review system.

Entitlement to Veteran Readiness and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38 of the United States Code.

The Veteran seeks to establish entitlement to VR&E services.  She requests assistance from the VR&E program to pursue a Master's degree in Education Technology.  She believes that having a higher-level degree will enable her to overcome her impairment to employability and to obtain and maintain suitable employment consistent with her aptitudes, interests, and abilities that does not exacerbate her service-connected disabilities.  See December 2015 VA Form 28-1902w, Rehabilitation Needs Inventory (RNI).

The provisions of Chapter 31, Title 38 of the United States Code, are intended to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 C.F.R. �� 21.1, 21.70.  For a veteran with 20 percent disability or greater, basic entitlement to Chapter 31 benefits requires that the veteran be found by VA to need rehabilitation because of an employment handicap.  38 C.F.R. � 21.40(b).  An employment handicap means an impairment, resulting in substantial part from a service-connected disability (or combination of service-connected disabilities) rated at 20 percent or more, of a veteran's ability to prepare for, obtain, or retain employment consistent with such veteran's abilities, aptitudes, and interests.  38 U.S.C. � 3101(7); 38 C.F.R. � 21.35(g).

The determination of whether an employment handicap exists has been specifically delegated by regulation to the discretion of a VA counseling psychologist (CP) or vocational rehabilitation counselor (VRC).  38 C.F.R. �� 21.50(b), 21.51.  An employment handicap will be found to exist when the individual has a vocational impairment (i.e., an impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests); the individual has not overcome the effects of the impairment of employability through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests; and his or her service-connected disabilities have contributed in substantial part to the overall vocational impairment. 38 U.S.C. � 3102; 38 C.F.R. � 21.51.

When the Veteran applied for VRE& benefits in December 2015, she had a Bachelor's degree in Education and prior experience working as a paraprofessional educator.  See December 2015 Rehabilitation Needs Inventory (RNI).  She was service connected for the following disabilities:

"	Raynaud's Disease affecting both hands with non-freezing cold injury residuals affecting the hands and feet, rated 0 percent disabling from April 21, 2015, and 40 percent disabling from July 21, 2015;

"	Irritable Bowel Syndrome (IBS), rated 30 percent disabling from April 21, 2015;

"	Residuals of a hysterectomy, rated 30 percent disabling from April 21, 2015;

"	Migraine headaches, rated 30 percent disabling from April 21, 2015;

"	Plantar fasciitis (claimed as feet pain), rated 30 percent disabling from July 21, 2015;

"	Degenerative disc and joint disease of the cervical spine, rated 10 percent disabling from April 21, 2015, and 20 percent disabling from July 21, 2015;

"	Degenerative joint disease of the lumbar spine, rated 0 percent disabling from April 21, 2015, and 20 percent disabling from July 21, 2015;

"	Right upper extremity radiculopathy with upper extremity neuritis, rated 20 percent disabling from July 21, 2015;

"	Left upper extremity neuritis, rated 20 percent disabling from July 21, 2015;

"	Left hip trochanteric bursitis, rated 10 percent disabling from January 3, 2006, to November 29, 2010, and 10 percent disabling from April 21, 2015;

"	Fibromyalgia, rated 10 percent disabling from April 21, 2015;

"	Left knee patellofemoral pain syndrome, rated 10 percent disabling from April 21, 2015;

"	Tinnitus, rated 10 percent disabling from April 21, 2015;

"	Insomnia, rated 10 percent disabling from April 21, 2015;

"	Right hip trochanteric pain syndrome (including trochanteric bursitis), rated 10 percent disabling from July 21, 2015;

"	Left shoulder impingement syndrome, rated 10 percent disabling from July 21, 2015;

"	Right shoulder impingement syndrome, rated 10 percent disabling from July 21, 2015;

"	Left wrist tendonitis with lateral and medial epicondylitis, rated 10 percent disabling from July 21, 2015;

"	Right wrist tendonitis with lateral and medial epicondylitis, rated 10 percent disabling from July 21, 2015;

"	Right knee patellofemoral pain syndrome and patellar chondromalacia, rated 0 percent disabling from April 21, 2015, and 10 percent disabling from July 21, 2015;

"	Right ankle lateral collateral ligament sprain, rated 10 percent disabling from July 21, 2015;

"	Left lower extremity radiculopathy associated with degenerative joint disease of the lumbar spine, rated 10 percent disabling from July 21, 2015;

"	Left lower extremity hypesthesia, lateral left lower extremity from hip to toes, etiology undetermined, rated 10 percent disabling from July 21, 2015;

"	Left hip trochanteric bursitis with acetabular impingement (limitation of extension), rated 0 percent disabling from April 21, 2015;

"	Left hip trochanteric bursitis with acetabular impingement (limitation of flexion), rated 0 percent disabling from April 21, 2015; and

"	Right hip trochanteric pain syndrome with flexion of the thigh beyond 45 degrees, rated 0 percent disabling from July 21, 2015;

Based on the foregoing, she had a 10 percent combined disability rating from January 3, 2006; an 80 percent combined disability rating from April 21, 2015; and a 100 percent combined disability rating from July 21, 2015.  She also experienced nonservice-connected ovarian cysts.

Under these circumstances, the Board finds that that the Veteran met the threshold requirements for entitlement to a program of vocational rehabilitation when she applied to the VR&E program in December 2015.  However, as stated above, even when the threshold percentages have been met, a veteran must still demonstrate that he or she needs rehabilitation to overcome an employment handicap.

In this case, the Veteran was afforded an Initial Evaluation with a VRC in December 2015.  Following a comprehensive assessment, the VRC found that the Veteran did not have an employment handicap for VR&E purposes.  Specifically, he opined that the Veteran's service-connected disabilities impaired her ability to prepare for, obtain, and retain suitable employment but that she had mitigated the effects of the impairment to employability based on her educational background and work experience.  The VRC noted that the Veteran was presently able to work as a teacher, substitute teacher, or paraprofessional as evidence by her recent full-time permanent employment as a resource room paraprofessional.  The VRC further noted that the Veteran was unemployed by her own choice having voluntarily resigned on December 18, 2015, from full-time employment as a public-school special education resource room paraprofessional.  The VRC acknowledged the Veteran's desire to attend a graduate school program and obtain a Master's degree in Education Technology.  However, the VRC opined that the Veteran was presently able and eligible to work in the education field.  The VRC concluded that, although the Veteran had a vocational impairment stemming from her service-connected disabilities, she had overcome her impairment to employability through her prior education, work experience, and transferable skills.

While the evidence reflects that the Veteran's numerous service-connected disabilities, with a combined rating of 100 percent, caused her some difficulties with aspects of her employment, the VRC nevertheless determined that the Veteran's disabilities would not prevent her from being able to obtain or maintain suitable employment consistent with her aptitudes, interests, and abilities.  The VRC reached this conclusion in the specific context of addressing the Veteran's vocational and educational goals.  Specifically, the VRC acknowledged that the Veteran had a vocational impairment that substantially resulted from her service-connected disabilities.  However, the VRC also found that the Veteran's prior education, work experience, and transferrable skills would enable her to overcome any such impairment to employability.  The VRC had sufficient facts and data before them to support a determination that the Veteran did not have an employment handicap, and the VRC provided a sound rationale for that determination.  See Black v. Brown, 10 Vet. App. 297 (1997).  VRCs are specifically delegated the authority, by VA regulation, to determine whether a veteran has an employment handicap.  On review, the Board finds that the December 2015 initial evaluation report prepared by the VRC is entitled to significant probative weight.

By contrast, the Veteran has not presented persuasive evidence to show that she had an employment handicap or that was otherwise entitled to VR&E services during the period at issue.  Prior to entry of the decision on appeal, the Veteran did not provide any indication that she was unable to obtain suitable employment in line with her educational background and prior work experience.  As noted above, the VRC indicated that the Veteran had retired from her job as a paraprofessional educator of her own volition and that she had expressed interest in obtaining a higher academic degree.  She did not indicate that her work as a paraprofessional educator aggravated her service-connected disabilities to the extent that she was unable to find other suitable employment that would utilize her Bachelor's degree, prior work experience, and transferrable skills.

The Board commends the Veteran for wanting to pursue further education. However, the Board emphasizes that the purpose of Chapter 31 VR&E services is not to provide the claimant with whatever level of career training he or she chooses should his or her interests or career objectives change.  Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 C.F.R. � 21.70.

Additionally, the Board acknowledges that one of the Veteran's service-connected disabilities increased in severity during the appeal period and that she was awarded service connection for several additional disabilities during the pendency of this appeal.  In that regard, the Veteran's service-connected left hip trochanteric bursitis with acetabular impingement (limitation of extension) increased from 0 percent disabling to 10 percent disabling beginning April 24, 2018.  Likewise, service connection was awarded for the following disabilities:

"	Abdominal scars, associated with left oophorectomy, rated 0 percent disabling from December 28, 2015, to June 1, 2018

"	Residuals of a left oophorectomy, rated 0 percent disabling from December 24, 2015, 100 percent disabling from December 28, 2015, and 0 percent disabling from April 1, 2016, to June 1, 2018

"	Post arthroscopy surgical scar associated with left hip trochanteric bursitis, rated 0 percent disabling from April 24, 2018

"	Surgical scars of the right shoulder associated with posttraumatic arthritis and labral tear status post arthroscopic repair of the right shoulder, rated 0 percent disabling from May 9, 2019

"	Posttraumatic arthritis and labral tear status post arthroscopic repair of the right shoulder, rated 0 percent disabling from July 21, 2015, 100 percent disabling from May 9, 2019, and 0 percent disabling from August 1, 2019; and

"	Left knee arthroscopy surgical scar resulting from medial and lateral incisions associated with left knee patellofemoral pain syndrome, rated 0 percent disabling from January 6, 2024.

She was also found to experience nonservice-connected left ankle instability status post double spiral fracture (including plate and screws) and nonservice-connected residuals of a right oophorectomy.

While the Board is cognizant of the changes in the Veteran's disabilities during the pendency of the appeal, the Veteran's combined disability rating remained at 100 percent throughout the entire period on appeal and the persuasive weight of the evidence does not demonstrate that the Veteran's additional/worsened disabilities significantly changed her overall disability picture.  Furthermore, there is no indication in the record that the Veteran ever requested a reevaluation of her additional/increased disabilities by the VRC or that she ever suggested that the additional/increased disabilities rendered her unable to obtain and maintain suitable employment.

As a final matter, on her December 2015 RNI, the Veteran asserted that she "medically retired" from working as a paraprofessional educator in December 2015 after she "began missing work due to migraines, getting sick a lot, and [experiencing] severe aches and pains."  See December 2015, RNI.  The Board acknowledges that the VRC's December 2015 Counseling Record - Narrative Report did not address the impact of the Veteran's migraine headaches or other "severe aches and pains."  If fact, it appears that the VRC specifically focused his assessment on the service-connected disabilities that resulted in the greatest degree of vocational impairment for the Veteran.  Notwithstanding this fact, it is important for the Veteran to understand that the VRC did not deny the claim because she did not have a vocational impairment resulting from her many service-connected disabilities.  Rather, the VRC denied the claim because he found that the Veteran's education (i.e., Bachelor's degree), prior work experience as a paraprofessional educator, and transferrable skills enabled her to overcome all vocational impairments and work as a teacher, substitute teacher, or paraprofessional educator.  Even if the Veteran medically retired from her position as a paraprofessional educator because of her service-connected disabilities, the fact remains that she was qualified to find other suitable employment that would not aggravate her service-connected and nonservice-connected disabilities.  Unfortunately, the Veteran did not offer any explanation as to why having a Master's degree would enable her to overcome her impairment to employability while having a Bachelor's degree would not.

Overall, the Board finds that the statutory requirements for entitlement to VR&E benefits were not met because the Veteran did not have an employment handicap during the period under consideration and was therefore not in need of rehabilitation.  The evidence of record persuasively demonstrates that the Veteran had the necessary work history, transferrable skills, and education to obtain gainful employment consistent with her abilities, aptitudes, and interests. 38 U.S.C. � 3101(8).  Finally, because an employment handicap is a threshold requirement of having a serious employment handicap, the Veteran also did not have a serious employment handicap during the period on appeal. 38 C.F.R. � 21.52(a).

The Board has considered the benefit-of-the-doubt doctrine but finds that the evidence is persuasively against the Veteran's claim.  That is to say, the evidence on the issue is not in approximate balance.  38 U.S.C. � 5107(b).  The appeal must be denied.

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael L. Marcum, 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.