Citation Nr: 0029491 Decision Date: 11/08/00 Archive Date: 11/16/00 DOCKET NO. 94-15 663 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for amputation of the right 4th (ring) finger. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from October 1942 to December 1945. The issue currently deemed to be on appeal to the Board of Veterans' Appeals (Board) has a long and complicated procedural history. By rating action of January 1946, the RO denied service connection for residuals of injury to the right 4th (ring) finger on the grounds that the inservice injury involving amputation of the finger at the proximal interphalangeal joint had the effect of ameliorating a condition incurred before enlistment, and the pre-service injury was not otherwise aggravated by service. The veteran was notified of this determination by letter of February 1946, but he did not appeal it by filing a timely Notice of Disagreement (NOD) therewith. In April 1965, he attempted to reopen his claim for service connection for the abovementioned disorder. Noting that evidence received in support of this claim revealed a tender and painful surgical scar associated with the amputation of the right 4th finger, the RO by rating action of June 1965 granted service connection and assigned a 10% rating for a scar on the palmar surface of the right hand, while the right ring finger amputation itself was considered non-service connected. By rating action of August 1993, the RO held, in pertinent part, that there was no clear and unmistakable error (CUE) in the January 1946 rating action which denied service connection for amputation of the right 4th (ring) finger. On VA Form 646 dated in December 1993, the veteran's representative specifically disagreed with this determination. Thereafter, the RO by rating action of January 1994 readdressed the matter of CUE in the January 1946 rating action. In February 1994, the veteran and his representative were issued a Supplemental Statement of the Case (SSOC) addressing, in pertinent part, the issue of whether the January 1946 rating action which denied service connection for amputation of the right 4th (ring) finger was clearly and unmistakably erroneous. Thereafter, the veteran's representative at the RO appears to have again reviewed the claims folder in May 1994: he wrote "OK" and initialed the abovementioned VA Form 646 dated in December 1993, and wrote the date "6 May 1994" on that document. Whereas the undersigned Veterans Law Judge (VLJ) would discourage this particular method of nonspecific communication by the veteran's representative, he is nevertheless of this opinion that it is possible to reasonably construe the representative's May 1994 notation as a timely Substantive Appeal of the August 1993 rating action which denied CUE in the January 1946 rating action, as well as the February 1994 so-called SSOC as to that issue. In summary, and as distinguished from what was noted in a December 1998 Board Remand Order by another VLJ and an April 1999 Board Remand Order by an Acting VLJ, the undersigned VLJ has thus determined that this appeal has originally arisen from a timely appeal of the August 1993 rating action. In June 1993, the veteran gave testimony at a hearing before a Hearing Officer at the RO with respect to issues including whether the January 1946 rating action which denied service connection for amputation of the right 4th (ring) finger was clearly and unmistakably erroneous. A transcript of this proceeding is of record. Inasmuch as this personal appearance occurred prior to the August 1993 rating action, this proceeding may not be considered to be a hearing on appeal with respect to the latter issue. By decision of 21 July 2000, the Board, in pertinent part, granted service connection for amputation of the right 4th (ring) finger on the grounds that the January 1946 rating action was clearly and unmistakably erroneous in denying service connection on the basis of aggravation of the pre- existing right ring finger disorder by service. By decision of November 2000, the Board vacated that portion of the 21 July 2000 Board decision which granted service connection for amputation of the right 4th (ring) finger on the basis of CUE in the January 1946 rating action, in order to accord due process of law. This Board decision constitutes de novo consideration of the appeal by the undersigned VLJ, as if the 21 July 2000 Board decision with respect to the matter of whether the January 1946 rating action which denied service connection for amputation of the right 4th (ring) finger was clearly and unmistakably erroneous had not been issued. Whereas the pertinent issue on appeal from the August 1993 rating action has been argued and developed on the basis of the presence or absence of CUE in the January 1946 rating action which denied service connection, the Board finds that the CUE question as to this issue has been rendered moot by the Board's decision, below, granting service connection for amputation of the right 4th (ring) finger under the provisions of 38 C.F.R. § 3.156(c) (1999). FINDINGS OF FACT 1. Residuals of injury of the right ring finger were noted on pre-induction examination of October 1942 and, as such, pre-existed service. 2. In December 1945, the RO received the veteran's original claim for service connection for amputation of the right 4th (ring) finger. 3. By rating action of January 1946, the RO denied service connection for amputation of the distal and middle joints of the right 4th (ring) finger; the veteran was notified of that determination, but he did not file an NOD therewith. 4. In June 1948, the RO received a supplemental report from the service department consisting of previously- unconsidered October 1943 service medical records (SMRs) showing that a planned surgical procedure to ameliorate a right ring finger disorder which pre-existed service could not be performed, and that instead the finger was amputated at the proximal interphalangeal joint. 5. Following receipt of new and material evidence pertinent to the veteran's claim for service connection for amputation of the distal and middle joints of the right ring finger in June 1948, the RO failed to reconsider the January 1946 rating action denying service connection for that disorder. 6. The additional SMRs received in June 1948 show that the veteran's pre-service residuals of injury of the right ring finger increased in severity during service. 7. At the time of discharge from service and thereafter, the veteran's amputation of the right ring finger was shown to be at the proximal interphalangeal joint. CONCLUSIONS OF LAW 1. The unappealed January 1946 rating action denying service connection for residuals of injury of the right 4th (ring) finger, then consisting of amputation at the proximal interphalangeal joint, was final as to the evidence then considered. Veterans Regulation No. 2(a), pt. II, par. III; VA Regulation 1008 (effective 25 January 1936 to 31 December 1957); 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. § 3.306 (1999). 2. New and material evidence consisting of previously- unconsidered SMRs received from the service department in June 1948 shows that the veteran's pre-service residuals of injury of the right ring finger were aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. §§ 3.156(c), 3.306, 3.400(q)(2), and Part 4 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background A review of the SMRs of record at the time of the January 1946 rating action includes an October 1942 pre-induction examination report which noted loss of flexion and extension and slight deformity of the veteran's right ring finger, which was not considered disqualifying for entrance into service. A November 1943 patient transfer form noted that the veteran was convalescing from what was diagnosed as a repair of a tendon of the left (sic) hand. Examination prior to discharge from service in December 1945 noted amputation of the 2 terminal phalanges of the right ring finger, due to contracture secondary to a pre-service injury. The amputation was noted to have taken place in November 1942 (sic) and to have been incurred in service. Post service in December 1945, the VA received the veteran's original claim for service connection for amputation of the right ring finger. By rating action of January 1946, the RO denied service connection for amputation of the distal and middle joints of the right 4th (ring) finger on the basis of records showing that the amputation occurred shortly after the veteran entered service to remedy a disability that existed prior to service, and that accordingly no disability had been incurred in or aggravated by service. By letter of 13 February 1946, the veteran was notified of the January 1946 rating action which denied service connection for amputation of the right 4th finger, as well as of his appellate rights. He was further advised that his claim had been considered on the basis of service records received by the RO, and that in case additional service records were received, which would warrant further consideration of his claim, the necessary attention would be given, and he would be advised of the action taken. The record does not reflect that an NOD therewith was received from the veteran within 1 year of the letter. On 18 February 1946, the RO received a supplemental report from the service department consisting of an additional SMR, which indicated that the veteran had been hospitalized on 12 October 1943 with complaints of right 4th finger pain. The cause of admission was noted to be a severe contracture of the flexor tendon of the right 4th finger, which, according to the veteran's statement, was due to an accidentally- incurred injury in civilian life in May 1943 (sic) when the finger was caught between the bumpers of 2 coal cars; this was noted to have existed prior to service. The SMR indicated that the veteran underwent amputation of the finger on 15 October, and he was released to duty in improved condition in November 1943. Received in July 1946 was another supplemental report from the service department consisting of an additional SMR dated 11 October 1943, which indicated that the veteran was to be transferred to a hospital for consideration of correction of a contracture of the flexor tendon of the right 4th finger with considerable deformity and slight function, which was due to a pre-service accident. Received in October 1947 was another supplemental report from the service department consisting of an SMR dated 12 October 1943, which indicated that the veteran had been hospitalized with a contracture of the flexor tendon of the right 4th finger with considerable deformity and slight function, and that this disorder was considered to have existed prior to service. Received in June 1948 was another supplemental report from the service department consisting of SMRs constituting original records of hospitalization of the veteran from 12 October to November 1943. The recorded history indicated that in May 1942 he was injured in a coal mine, sustaining infection and subsequent contracture of the flexor tendon of the right 4th finger, which at the time of the injury was caught between the bumpers of 2 coal cars. At the time he was thought to have had a fracture and extensive laceration of the finger with possible severing of the tendon flexors. He was currently admitted for revision of this disability. A 15 October operation report indicates that it was planned to do a tendon lengthening operation on the right 4th finger, but upon exposure of the tendon and the proximal interphalangeal joint, this joint was found to be markedly deformed, preventing the planned surgical procedure, that is, extension of the 2 distal phalanges. Instead, and as a consequence, the finger was amputated at the proximal interphalangeal joint, disarticulation being done with the extensor and flexor tendons sutured together over the stump. At the time of hospital discharge, the amputation stump was noted to be well-healed and somewhat tender on the tip. VA examination of June 1993 showed a status post amputation of the right ring finger at the proximal interphalangeal joint with some hypesthesias. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including post-operative scars and absent or poorly- functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). The law grants a period of 1 year from the date of notice of the result of the initial determination for the filing of an application for review on appeal; otherwise, that determination becomes final and is not subject to revision on the same factual basis. Veterans Regulation No. 2(a), pt. II, par. III; VA Regulation 1008 (effective 25 January 1936 to 31 December 1957). Where new and material evidence consists of a supplemental report from the service department, received before or after a decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the VA. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c). See also 38 C.F.R. § 3.400(q)(2). In this case, the veteran has contended that the January 1946 rating action was clearly and unmistakably erroneous in denying service connection for amputation of the right 4th (ring) finger, inasmuch as the amputation of the finger he underwent in service constitutes aggravation, not amelioration, of his pre-existing finger disorder. The Board finds that the evidence supports the grant of service connection for amputation of the right 4th finger based on the veteran's original December 1945 claim, but that this grant may be made without finding CUE in the January 1946 rating action. The evidence of record at the time of the January 1946 rating action, consisting of several but not all of the veteran's SMRs, indicated that he underwent amputation of the 2 terminal phalanges of the right 4th (ring) finger due to contracture secondary to a pre-service injury. On that record, the RO determined that the inservice surgery resulting in amputation was ameliorative and undertaken to remedy a disability that existed prior to service, and accordingly denied service connection on the grounds that no disability had been incurred in or aggravated by service. The veteran did not appeal that determination, and consequently it became final. However, the February 1946 notice of the January 1946 rating action denying service connection informed the veteran that, in case additional service records were received which would warrant further consideration of his claim, the RO would accord them the necessary attention and he would be advised of the action taken. Subsequent to the January 1946 rating action, the service department furnished supplemental reports to the RO consisting of additional SMRs pertinent to that claim on several occasions between February 1946 and June 1948. On the latter occasion in 1948, significant detailed SMRs which had not been previously considered by the RO were received from the service department showing that in October 1943 the planned surgery on the veteran's right ring finger with the intent to ameliorate the condition which existed before enlistment was never performed, as the marked deformity of the proximal interphalangeal joint prevented the planned surgical procedure to lengthen the tendon. Instead, the right ring finger was amputated at the proximal interphalangeal joint. The Board finds that receipt of these additional service records in June 1948 showing the performance of an alternative surgical procedure in service and resulting in amputation of the right ring finger at the proximal interphalangeal joint - evidence of an increase in severity of the pre-service right ring finger disorder coincident with service, inasmuch as it clearly represented a worsening of the pre-service condition by virtue of the amputation, and specifically was not surgery which had the effect of ameliorating a condition incurred before enlistment - should have prompted the RO to deem them new and material evidence and reconsider the veteran's original December 1945 claim for service connection in accordance with the RO's February 1946 letter. With application of the provisions of 38 C.F.R. §§ 3.156(c) and 3.400(q)(2), the Board thus finds that the RO's failure to act on the new and material evidence received in June 1948 and reconsider the January 1946 rating action which denied the veteran's original December 1945 claim for service connection for amputation of the right 4th (ring) finger in light thereof has resulted in that claim remaining pending up to the present time. Under the applicable provisions of the revised (1945 edition) VA Schedule for Rating Disabilities in effect in 1948, favorable or unfavorable ankylosis of the ring finger of either hand warrants a noncompensable rating. Ankylosis is considered to be favorable when it does not prevent flexion of the tip of the finger to within 2 inches (5.1 centimeters) of the median transverse fold of the palm. It is unfavorable when it precludes such motion. However, limitation of motion of less than 1 inch (2.5 centimeters) in either direction is not considered disabling. Extremely unfavorable ankylosis will be rated as amputation under the provisions of Diagnostic Code 5155. Ankylosis is considered to be extremely unfavorable when all of the joints of the finger are in extension or in extreme flexion, or when there is rotation and angulation of the bones. Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, with either joint in extreme flexion, will be rated as amputation. 38 C.F.R. Part 4, Diagnostic Code 5227. A 10% rating for amputation of the ring finger of either hand is warranted if the point of amputation is at the proximal interphalangeal joint or proximal thereto, without metacarpal resection. A 20% rating requires that the amputation involve metacarpal resection with more than one-half of the bone lost. 38 C.F.R. Part 4, Diagnostic Code 5155. The Board notes that the veteran's pre-existing residuals of injury to the right ring finger were noted on pre-induction examination of October 1942, but the findings of loss of finger flexion and extension therein did not indicate extremely unfavorable ankylosis of the right ring finger when he entered service. Accordingly, his pre-existing residuals of injury to the right ring finger were ratable as 0% disabling under Diagnostic Code 5227 at the time of entrance into service. The veteran having undergone surgery in service resulting in amputation of the right ring finger - in itself clearly representing aggravation of the pre-service disorder, inasmuch as the surgery did not serve to ameliorate the pre-existing condition - and the amputation of the 2 terminal phalanges of the right ring finger having been noted on separation examination of December 1945, the Board finds that he departed service with a right ring finger disability ratable as 10% disabling under Diagnostic Code 5155. The veteran thus having entered service in 1942 with a pre- existing right ring finger disorder indisputably ratable under the criteria in effect in 1948 as 0% disabling, and departed service in 1945 with a right ring finger amputation indisputably ratable under the criteria in effect in 1948 as 10% disabling, the Board finds that the evidence supports the veteran's original December 1945 claim for service connection for amputation of the right 4th (ring) finger on the basis of aggravation of the pre-existing right ring finger disorder by service, and the appeal is granted. ORDER Service connection for amputation of the right 4th (ring) finger is granted. BRUCE E. HYMAN Veterans Law Judge Board of Veterans' Appeals - 2 - - 1 -