Citation Nr: 1123620 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 08-32 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bruxism. 2. Entitlement to service connection for attention deficit disorder (ADD). 3. Entitlement to a compensable rating for residuals of a closed fracture of the left fifth metacarpal bone neck. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 2002 to August 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bruxism and ADD and granted service connection for residuals of a closed fracture of the left fifth metacarpal bone neck rated 0 percent, effective August 29, 2007. In July 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In August 2010 the Board sought translation of a foreign language service treatment record (STR); the translation has been associated with the claims file. The Veteran's claims file is now in the jurisdiction of the St. Petersburg, Florida RO. The matter of service connection for ADD is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The evidence reasonably establishes that the Veteran has bruxism that was incurred in service. 2. The Veteran's residuals of a closed fracture of the left fifth metacarpal bone neck are manifested by limitation of motion of the distal interphalangeal joint, subjective pain on motion, and subjective weakness of grip. CONCLUSIONS OF LAW 1. Service connection for bruxism is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. A compensable rating for residuals of a closed fracture of the left fifth metacarpal bone neck is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5010-5003, 5216-5230 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Bruxism Inasmuch as the benefit sought is being granted in full, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist failure is harmless. Fifth metacarpal rating As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2008 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Veteran's pertinent treatment records have been secured. The RO arranged for a VA hand examination in August 2008. While the Veteran alleges that the examination was inadequate (on his VA Form 9 substantive appeal), the examination is in fact adequate as the examiner expressed familiarity with the history of the Veteran's disability, conducted a thorough examination of the Veteran, acknowledged his lay history of perceived weakness of the left hand, and noted all findings necessary for a proper determination in the matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Bruxism Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A May 2006 STR notes a diagnosis of "teeth abrasion bruxism" with no obvious etiology and that the Veteran was encouraged to continue using a bite guard. A January 2007 STR notes that the Veteran complained of sleep problems and bruxism. The remaining STRs consistently note a diagnosed problem of "teeth abrasion bruxism." On August 2008 VA dental examination the Veteran reported a history of swelling every three to four months for one to two days and moderate pain at least weekly but less than daily of the left mandible. He reported that stress in 2004 initiated "lockjaw" and grinding of his teeth and that he was hit in the mouth by a mounted gun in service with residual soreness for several days. On examination there was popping of the right temporomandibular joint (TMJ) during maximum opening and it was noted that the posterior teeth had been abraded "probably due to bruxism." Evidence of bruxism included flattened occlusal surfaces of the posterior teeth. X-rays were interpreted as revealing no pathology. The examiner noted that abrasion and bruxism were documented numerous times in the claims file and examination therein and that numerous mouth guards had been made. The Veteran submitted a June 2009 Mayo Clinic printout that notes that doctors do not completely understand the causes of bruxism but that possible physical and psychological causes included: anxiety, stress, or tension, suppressed anger or frustration, and psychiatric medication side effects. At the July 2010 Travel Board hearing the Veteran testified that he was told that he grinds his teeth, causing an uneven jaw and wearing down of his teeth. He noted that he was prescribed a mouth guard to treat his teeth grinding and that in service he was told that he suffered from nocturnal bruxism which had abraded his teeth. He reported that he had pain and tightness in the jaw muscles and the bruxism eventually led to headaches. He noted that he had a popping sound when his jaw opened and this was noted in the record to be detectable audibly on demonstration. He added that after he returned from a deployment in Iraq (in 2003-2004) he started to have dental problems and that he never had a problem with grinding his teeth prior to his deployment. Competent medical evidence is not always required when the determinative issue is a medical nexus or diagnosis and the Veteran is competent to provide lay evidence as to observation of his disability symptoms or disabilities that are capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007). Grinding of the teeth, pain and aching in the jaw, and headaches are all readily lay observable as such symptoms come to the Veteran through his senses. The Board finds the Veteran's testimony and statements to be competent evidence in that regard. The August 2008 VA dental examination noted the Veteran's in-service documented bruxism and that there was current clinical evidence of bruxism. In conjunction with the Veteran's lay accounts of current grinding of the teeth and use of a mouth guard (which the Board finds to be competent, credible, and probative), the Board finds that this evidence shows a current disability. The Veteran's STRs document a diagnosis of (and ongoing treatment for) bruxism in service and the Board finds that bruxism had its onset in service. The Veteran's lay accounts of postservice continuity of grinding of the teeth also serve to support his claim. The Board finds the lay statements of record to be competent, credible, and probative evidence in the matter of continuity of symptomatology of the bruxism. The lay evidence establishes that the Veteran did not experience bruxism before his deployment to Iraq, but began to experience grinding of the teeth in service (which was noted), with continuity of symptomatology demonstrated thereafter. The Board finds that the evidence of record reasonably supports the Veteran's claim. Accordingly, service connection for bruxism is warranted. Fifth metacarpal In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities which are rated according to the specific criteria therein. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Traumatic arthritis is rated as degenerative arthritis under Code 5003. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Codes 5010-5003. Code 5156 provides for a 10 percent rating where there is amputation of the little finger without metacarpal resection at the proximal interphalangeal joint or proximal thereto. A maximum 20 percent rating is warranted for amputation with metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a. Code 5227 provides for 0 percent (noncompensable) rating for unfavorable or favorable ankylosis of the ring or little finger of the major or minor hand. 38 C.F.R. § 4.71a Code 5230 provides for a schedular maximum 0 percent (noncompensable) rating for any limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a. The preamble to 38 C.F.R. § 4.71a , Codes 5216 to 5230, provides, in relevant part, that: (1) For the long, ring, and little fingers (digits III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Table "Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand." On August 2008 VA hand examination the examiner noted that the Veteran was left hand dominant and fractured his left fifth metacarpal in service in June 2005 and that the condition had become progressively worse. The Veteran reported that his left hand seemed weaker than his right since the injury. The examiner noted that there was no overall decrease in hand strength or dexterity, other hand symptoms, flare-ups, or joint symptoms. There was no amputation, ankylosis, or deformity. The examiner noted that unless noted, there was no change in range of motion or pain, fatigue, weakness, or incoordination on repetitive testing. On examination painless ranges of motion were: Left fifth metacarpophalangeal joint 0 to 90 degrees Left fifth proximal interphalangeal joint 0 to 100 degrees Left fifth distal interphalangeal joint 0 to 70 degrees No additional limitations were noted. The Veteran was noted to participate in a clerical work study program without losing time from work. The diagnosis was closed fracture of the left metacarpal, well healed. There were no significant effects on the Veteran's usual occupation or usual daily activities. On his October 2008 VA Form 9 (substantive appeal) the Veteran stated that the August 2008 VA examiner was more interested in his middle finger and that the examiner's finding that there was no overall decrease in hand strength was inaccurate. At the July 2010 Travel Board hearing the Veteran testified that he was left handed and experienced pain when he bent his left little finger. He noted that he typically avoided certain activities which brought on the pain. He noted that he had a knob installed on his steering wheel to assist him in driving and that when he worked as a mover he experienced an uneven grip, which felt like his pinky finger was not as strong in his left hand. He testified that he had weaker grip strength due to the fractures in service. The Veteran fractured his left fifth metacarpal in service, and as noted above, the RO assigned a 0 percent rating (under Code 5230) effective August 29, 2007 (the day after the Veteran's discharge). As a noncompensable rating is the schedular maximum under Code 5230, the focus is on alternate criteria that would provide for (at least) a compensable rating. See Esteban v. Brown, 6 Vet. App. 259 (1994). August 2008 VA examination noted there was no amputation, ankylosis, or deformity of the left fifth metacarpal. The Board also finds that the symptoms and functional impairment noted do not approximate amputation of the involved finger. Accordingly, ratings under Codes 5227 and 5156 are not warranted. The evidence of record does not suggest or establish that the Veteran has arthritis of the affected left fifth finger joint and a rating under Code 5010-5003 for X-ray confirmed arthritis with noncompensable limitation of motion is not warranted. The Board must also consider whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board notes the Veteran's testimony regarding impairment of function in occupational settings, such as driving a car, lifting and gripping objects, pain on bending the finger, and perceived left hand weakness; however, the Board finds the objective clinical findings contained in the examination report of record to be more probative in establishing that the Veteran does not suffer from additional disability due to repetitive use of his left fifth metacarpal or any pain on ranges of motion; a higher rating is not warranted on that basis. The Board has considered whether there is any other schedular basis for granting a higher or separate rating at any time during the appeal period; however, the functional impairment shown is encompassed by the schedular rating assigned, and at no time during the period in question has the disability warranted a compensable rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether referral for extraschedular consideration is warranted. There is no objective evidence or allegation in the record of symptoms of and/or impairment due to the left fifth metacarpal disability that are not encompassed by the rating assigned. Limitation of motion of the involved finger is squarely addressed by Code 5230. Therefore, the criteria are not inadequate. Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the Veteran works in a work study program and has not alleged unemployability due to his service-connected left fifth metacarpal disability, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Service connection for bruxism is granted. A compensable rating for residuals of a closed fracture of the left fifth metacarpal bone neck is denied. REMAND In March 2008 the Veteran filed a notice of disagreement (NOD) from the February 2008 rating decision which denied service connection for ADD (among the 7 issues adjudicated). Subsequently, the RO granted four of Veteran's service connection claims and issued an SOC as to the rating for residuals of fracture of the left fifth metacarpal bone and service connection for bruxism. However, service connection for ADD was neither granted nor included in the SOC in response to the Veteran's NOD. Under these circumstances, the Board is required to remand the matter for issuance of an SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal after the SOC is issued. Accordingly, the case is REMANDED for the following action: Regarding the matter of service connection for ADD, the RO/AMC should issue an appropriate SOC in the matter. The Veteran should be advised of the time limit for perfecting his appeal, and afforded opportunity to do so. If the Veteran timely perfects an appeal in the matter, it should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs