Prior to February 6, 2023, a 40 percent rating for status post right distal bicep tendon repair (dominant) is granted.

Citation Nr: 26001377 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 19-30 649 DATE: January 30, 2026 ORDER Prior to February 6, 2023, a 40 percent rating for status post right distal bicep tendon repair (dominant) is granted. A rating higher than 40 percent for status post right distal bicep tendon repair (dominant) is denied. FINDINGS OF FACT 1. Throughout the period prior to February 6, 2023, the Veteran had cardinal signs of muscle injury of group V consistent with severe muscle injury. 2. The Veteran is in receipt of the maximum 40 percent rating under DC 5305 throughout the rating period, which is the highest schedular rating for injury of Muscle Group V of the dominant shoulder. This rating fully contemplates the symptoms associated with the service-connected right biceps disability. Separate ratings for his right biceps muscle impairment under other codes would constitute impermissible pyramiding. CONCLUSIONS OF LAW 1. Prior to February 6, 2023, the criteria for a 40 percent rating for status post right distal bicep tendon repair (dominant) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, 4.73, Diagnostic Codes (DCs) 5205, 5305. 2. The criteria for a disability rating in excess of 40 percent for status post right distal bicep tendon repair (dominant) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, 4.73, Diagnostic Codes (DCs) 5201, 5305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to April 2005 and from March 2006 to May 2018. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2022, the Veteran testified at a virtual Board hearing before the undersigned. A transcript of the hearing has been reviewed. This matter was previously remanded for additional development in November 2022 and October 2023. There has been substantial compliance with the remand directives, and the appeal is ready for Board review. Increased rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Increased rating for right biceps muscle For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (Diagnostic Codes 5301 through 5306); 3 muscle groups for the forearm and hand (Diagnostic Codes 5307 through 5309); 3 muscle groups for the foot and leg (Diagnostic Codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (Diagnostic Codes 5313 through 5318); and 5 muscle groups for the torso and neck (Diagnostic Codes 5319 through 5323). 38 C.F.R. § 4.55(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). Muscle injuries are categorized as slight, moderate, moderately severe, and severe in relation to the type of injury, history and complaint, and objective findings. 38 C.F.R. § 4.56. Right distal bicep tendon repair (dominant) is rated under DC 5305. The rating is based on severe injury of Muscle Group V of the dominant shoulder. The function is elbow supination: 1) (long head of biceps is stabilizer of shoulder joint) and elbow flexion. It includes the flexor muscles of elbow: (1) Biceps; (2) brachialis; (3) brachioradialis The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. Additionally, muscle injury ratings will not be combined with a rating for peripheral nerve paralysis of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). Objectively, a moderate muscle disability consists of: entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; some loss of deep fascia or muscle substance 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)(3). A moderately severe muscle disability contemplates: 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" disability is characterized by an injury of a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. History and complaint are hospitalization for a prolonged period for treatment of wound; along with consistent complaints 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, inability to keep up with work requirements. Objective findings are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the 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. 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; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4) A maximum rating of 50 percent is assignable for unfavorable ankylosis of the scapulohumeral articulation. See 38 C.F.R. § 4.71a, DC 5200. A maximum 60 percent rating is assignable for ankylosis of the dominant elbow. 38 U.S.C. 38 C.F.R. § 4.71a, DC 5205. Service treatment records show a history of right biceps rupture and surgical treatment for biceps repair in September 2014. At the Board hearing, the Veteran testified that he has pain and mobility problems with his right arm. He noted problems picking up heavy objects. At a February 2023 VA examination, the examiner diagnosed status post right distal bicep tendon repair (dominant). The date of diagnosis was September 2014. The injury affected the right side. The examiner noted a history of a non-penetrating muscle injury. The VA examination noted that the Veteran had a muscle injury in August 2014. He started experiencing severe pain in the right bicep after he felt a snap while lifting weights. He went to the emergency room and received an Ace bandage and Motrin. In September 2014, he underwent bicep repair at NAS Jacksonville. He reported that the condition progressed. In 2020, he had an EMG done. His current symptoms include sharp pain in right bicep that radiated to the forearm and fingers with numbness and tingling. He claimed that this condition interfered with lifting, carrying objects or a long period of time. He reported that he was currently taking Methocarbamol 500 mg. The examiner noted that there was a muscle injury of Group V. There were no fascial defects. The VA examination noted that the signs and symptoms included loss of power, weakness, lowered threshold of fatigue, and fatigue and/or pain. Examination showed shoulder abduction of 4/5, elbow flexion of 4/5, and elbow extension of 4/5. There was no muscle atrophy. An April 2023 rating decision increased the rating of right distal bicep tendon repair from 30 percent to 40 percent from February 6, 2023. The rating decision found that the evidence showed a "severe" level of injury which affecting elbow supination and flexion and evidence of inability to keep up with work requirements. The VA examination noted that the Veteran's muscle injury impacted his ability to work, such as resulting in inability to keep u with work requirements due to muscle injuries. The examination noted interference with prolonged or repetitive overhead activities, pushing or pulling for over 20 minutes, or weightlifting over 10 pounds. A February 2023 VA examination noted that there was no electrodiagnostic evidence of right ulnar neuropathy or cervical radiculopathy. The Board remanded the case for a VA examination to address the severity of the muscle injury during the appeal period. The rating was based on a severe level of muscle injury on the February 2023 VA examination. An October 2024 VA examination noted that the Veteran has decreased use of the right arm. The Veteran has constant pain and tingling in the right arm. The degree varies depending on activities. The tingling is worse in the pinky and ring finger of the right hand. The Veteran has pain with pronation and supination of the right forearm. The Veteran has decreased strength in the right arm as well as lowered threshold for fatigue in the right arm. The Veteran's condition has previously been assessed across several disability benefit questionnaires (DBQ's} due to impact on muscle, painful motion of the elbow, and nerve involvement. The assessment is complicated and difficult to address on the muscle injury DBQ alone. Based on past and current exams the symptoms of the muscle injury have not improved since the initial injury. The pain and paresthesia have increased over time and are now constant symptoms of the right arm. The Board finds that a 40 percent rating for severe muscle injury is warranted throughout the period. The evidence throughout the rating period shows that his muscle disability was manifested with cardinal signs and symptoms causing an inability to keep up with work requirements. Therefore, the evidence is consistent with a 40 percent rating, which is the maximum rating for severe injury of Muscle Group V. The October 2024 VA examiner did not provide a retrospective opinion addressing the severity of his disability as ordered by the remand. However, the highest possible rating under DC 5305 is granted throughout the appeal period. There is no basis for a separate rating under any other diagnostic code for muscle injuries as there are no other affected muscle groups other than Group V. The Board has considered whether a higher rating is warranted for neuropathy of the right arm. The evidence does not show findings of upper extremity neuropathy associated with right biceps rupture. The Veteran is competent to report numbness and tingling of his arm. However, the most probative and competent evidence referenced by a VA examiner shows normal EMG findings of his right upper extremity. Under DC 8511, a rating higher than 40 percent requires severe incomplete paralysis of the upper radicular group. There are no findings of severe incomplete paralysis of the upper extremity radicular group. Therefore, a rating higher than 40 percent under criteria for peripheral nerve conditions is not warranted, and the highest available rating is the 40 percent rating assigned under DC 5305. There are no higher ratings available for muscle disability of the dominant shoulder. The maximum rating assignable for muscle injury of Group V of the dominant arm has been assigned. Accordingly, the evidence weighs persuasively against the claim for a rating higher than 40 percent. 38 C.F.R. § 3.102; 38 U.S.C. § 5107. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.