Citation Nr: 1127296 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 06-06 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable rating prior to May 3, 2010, and in excess of 10 percent from May 3, 2010, for residuals of a fracture of the 5th metacarpal of the right hand. 2. Entitlement to an initial rating in excess of 10 percent prior to May 3, 2010, and in excess of 40 percent from May 3, 2010, for chondromalacia patella with degenerative joint disease of the left knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to May 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Philadelphia, Pennsylvania Department of Veterans' Affairs (VA) Regional Office (RO), wherein the RO, in part, granted service connection for chondromalacia patella with degenerative joint disease of the left knee, evaluated as 10 percent disabling, and for residuals of a fracture of the 5th metacarpal of the right hand, evaluated as noncompensable, with each effective from June 1, 2004. The Veteran perfected an appeal contesting the initial ratings assigned for each of the disabilities. The Veteran also perfected an appeal contesting the initial noncompensable rating assigned for residuals of an injury to the 2nd and 3rd metacarpals of the left hand. In a November 2006 statement, however, he withdrew his appeal with respect to this issue. Therefore, this issue is no longer a part of the current appeal. See 38 C.F.R. § 20.204 (2010). This case was previously remanded by the Board in December 2009 for further development. By a February 2011 rating decision, the RO granted an initial rating of 40 percent for chondromalacia patella with degenerative joint disease of the left knee, effective from May 3, 2010, and granted an initial rating of 10 percent for residuals of a fracture of the 5th metacarpal of the right hand, from effective May 3, 2010. Given that such ratings do not represent the highest possible benefit, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to an initial rating in excess of 10 percent prior to May 3, 2010, and in excess of 40 percent from May 3, 2010, for chondromalacia patella with degenerative joint disease of the left knee, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran sustained a fracture of the 5th metacarpal of the right hand resulting in an anatomical defect of the right 5th finger; this disability is productive of swelling, tenderness, painful limitation of motion, decreased strength and dexterity, and moderate functional impairment of the right hand in regards to grasping, pushing, pulling, twisting, probing, writing, touching, and expression, at least for the period from June 1, 2004. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for residuals of a fracture of the 5th metacarpal of the right hand have been met, at least for the period from June 1, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5230, 5227 (2010). 2. The criteria for an initial rating in excess of 10 percent for residuals of a fracture of the 5th metacarpal of the right hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5230, 5227 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2010). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the January 2005 rating decision, he was provided notice of the VCAA in August 2004. An additional VCAA letter was sent in January 2010. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. Thereafter, the Veteran received additional notice in October 2006 pertaining to the downstream disability rating and effective date elements of his claim for an increased initial disability rating for the residuals of a fracture of the 5th metacarpal of the right hand and was furnished a Statement of the Case in October 2006 with subsequent re-adjudication in a February 2011 Supplemental Statement of the Case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. It is well to observe that service connection for residuals of a fracture of the 5th metacarpal of the right hand has been established and an initial rating for this condition has been assigned. Thus, the Veteran has been awarded the benefit sought, and such claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. Also, following the award of service connection for this disability, evaluated as noncompensable, the Veteran filed a notice of disagreement (NOD) contesting the initial rating determination. See 38 C.F.R. § 3.159(b)(3) (2010). The RO furnished the Veteran a Statement of the Case (SOC) that addressed the initial rating assigned for his residuals of a fracture of the 5th metacarpal of the right hand, included notice of the criteria for a higher rating for that condition, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting his appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, VA outpatient treatment reports, private medical records, VA examinations, and statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2010). Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, an evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's residuals of a fracture of the 5th metacarpal of the right hand are currently rated as noncompensable prior to May 3, 2010, and as 10 percent disabling from May 3, 2010, pursuant to 38 C.R.R. § 4.71a, Diagnostic Codes 5003-5230. See 38 C.F.R. § 4.27 (2010) (A hyphenated code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned). Diagnostic Code 5003 provides ratings for degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic 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. In the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) and (2), following diagnostic code 5003, the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5230, the sole and maximum evaluation of zero percent is assigned for any limitation of motion of the (major or minor) ring or little finger. Under Diagnostic Code 5227, the sole and maximum evaluation of zero percent is assigned for favorable or unfavorable ankylosis of the (major or minor) ring or little finger. 38 C.F.R. § 4.71a. A. Factual Background Throughout the duration of the appeal, the Veteran has maintained that his current residuals of a fracture of the 5th metacarpal of the right hand warrant a higher disability rating. Service treatment reports from June 2003, within one year of the Veteran's claim for service connection, do not reflect any complaints or treatment for the right hand or residuals of a fracture of the 5th metacarpal. These records do, however, show that the Veteran sustained an injury to the right hand in November 2000, assessed by X-ray as a boxer's fracture of the 5th metacarpal. A July 2004 VA outpatient treatment reflects objective findings of a normal hand grip in both hands, a normal range of motion of the digits in both hands, and mild deformity noted in the mid region of the 3rd metacarpal bone. An X-ray of both hands revealed findings of status post fracture of digits in both hands. In a September 2004 VA examination, the Veteran reported that he was right handed and had suffered a boxer's fracture of the midshaft of the 5th right metacarpal. He reported the right hand was painful only on prolonged gripping action. A physical examination revealed that both hand grips were full and the joints all looked normal. The examiner noted in his diagnosis that the Veteran was examined for residuals of injuries of both hands and none were found. In a March 2005 private medical record, the Veteran reported having difficulty at work, while working as a carpenter. He complained of right hand pain with decreased strength, which was painful when he gripped and grasped. The Veteran's history of a 5th metacarpal fracture on the right hand was noted. Objective findings revealed a deformity palpated on the right hand 5th metacarpal, pain with palpation, a full range of motion, intact sensation, and decreased grip strength. He was diagnosed with boxer's fracture of the right hand 5th metacarpal, nondisplaced in November 2000. In relevant part, the private physician opined that after a thorough examination, the Veteran demonstrated advanced chronic dysfunction of the right hand which caused, and would continue to cause (along with his left hand and left knee), a loss of financial gain in his future and current occupation as a carpenter. In a May 2006 VA examination, the Veteran complained of right hand pain which was intermittent with stiffness and weakness. He reportedly had once-weekly flare-ups with pain lasting approximately two hours. The Veteran reported having right hand pain only with activity with pain approximately for one hour. He reported that he was right handed. A physical examination revealed mild to moderate tenderness along the dorsal aspect of the 5th metacarpal bone and no obvious anatomical defect at the right hand. The Veteran could oppose his 5th, 4th, 3rd, and 2nd fingers to his thumb without difficulty. He was able to touch all fingers, 2nd, 3rd, 4th, and 5th, to the median transfer fold of his palm. Grasping strength appeared to be normal and dexterity was good. With active and passive range of motion, the range of motion was normal with all the fingers and there was no additional limitation of range of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance. No swelling was noted on examination. The Veteran was diagnosed with right 5th metacarpal strain, mildly active at the time of examination. The examiner also noted in his diagnosis that the Veteran had a history of fracture of the right 5th metacarpal bone, and that X-ray was negative for arthritis. An April 2007 VA outpatient treatment report revealed the Veteran complained of intermittent pain localized to the right 5th metacarpal joint, fleeting in nature and progressive with activity. A physical examination revealed a full range of motion of the finger, both actively and passively. He reported that if he concentrated, he could adduct the finger. There was no finding of collateral ligament instability of the proximal interphalangeal joint with varus/valgus stress. A magnetic resonance imaging (MRI) scan was unremarkable. The Veteran was diagnosed with status post fracture of the right 5th phalynx with transient pain with activities of daily living. In a May 2007 VA outpatient occupational therapy treatment report, the Veteran was noted have an unremarkable X-ray and MRI of the right 5th phalynx. He complained of weakness to radial adduction and plantar flexion, that his hand hurt when he used it, and he had had pain in the small finger with use of his hand at his job. Objective findings revealed the Veteran was right hand dominant, worked in construction, and the small finger was positioned in abduction approximately 20 degrees with approximately 15 degrees of proximal interphalangeal joint flexion. Passive range of motion was within full/functional limits. The Veteran's active range of motion of the metacarpal phalangeal joint was from zero to 90 degrees, noted to be tight. The proximal interphalangeal joint with metacarpal phalangeal joint range of motion revealed extension was zero to 90 degrees postured with 15 degrees of flexion able to extend to zero. The distal interphalangeal joint with metacarpal phalangeal joint range of motion revealed extension from zero to 30 degrees. The range of motion was noted to be within full/functional limits. The Veteran was noted to be independent with all activities of daily living. He was assessed with minimal loss of extension in the right small finger and weakness. In a May 2010 VA examination, the Veteran reported that his right 5th finger condition had worsened since his military discharge in May 2004. He reported that he was right hand dominant. His subjective complaints included right 5th finger pain, described as moderate to severe intermittent pain with moderate to severe stiffness and weakness occurring seven to eight times a day and lasting a half hour. Aggravating factors included pushing pulling twisting, wringing, and grasping. Alleviating factors included rest and the use of daily medications (Motrin and Lidoderm). The Veteran denied any flare-ups due to this condition. A physical examination revealed anatomical defect of the right 5th finger, limited extension of the proximal interphalangeal joint to 20 degrees with moderate swelling and moderate tenderness. There was moderate tenderness noted along the distal 5th metacarpal bones of the proximal half of the 5th finger and moderate tenderness on palpation. The Veteran could oppose the tip of the right thumb to the tip of the 2nd, 3rd, and 4th fingers and could touch the tips of the 2nd, 3rd, and 4th fingers to the median transverse fold of the right palm. The Veteran had difficulty touching the tip of the right 5th finger to the median transverse fold of the right palm, approximately five centimeters in distance. Both strength and dexterity of the right hand were moderately decreased due to the right 5th finger condition. The examiner found that, with respect to his activities of daily living as well as his occupation in construction, there was moderate functional impairment of the right hand due to the right 5th finger condition in regards to grasping, pushing, pulling, twisting, probing, writing, touching, and expression. B. Discussion When the medical evidence is evaluated under the VA's Schedule for Rating Disabilities, it is apparent that the Veteran is not entitled to a compensable evaluation based on either the degree of limitation of motion in, or ankylosis of, the Veteran's little finger of the right hand. The private examination in March 2005 and the VA examinations in July 2004, May 2006, April 2007, and May 2007 indicate that the Veteran had a full and functional range of motion. In fact, VA examination in May 2006 indicated that the Veteran had no additional limitation of range of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance, as well as no swelling detected on examination. Nevertheless, VA examination in May 2007 indicated that the Veteran's right small finger was positioned in abduction approximately 20 degrees, with approximately 15 degrees of proximal interphalangeal joint flexion, and also indicated that he had distal interphalangeal joint with metacarpophalangeal joint motion of extension from zero to 30 degrees. See 38 C.F.R. § 4.71a, EVALUATION OF ANKYLOSIS OR LIMITATION OF MOTION OF SINGLE OR MULTIPLE DIGITS OF THE HAND, Note (1) (For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalageal 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). Moreover, the private examination in March 2005 revealed that there were objective findings of a deformity palpated on the right 5th metacarpal, pain with palpation, decreased grip strength, and also indicated that the Veteran demonstrated advanced chronic dysfunction of the right hand. Mild to moderate tenderness along the dorsal aspect of the 5th metacarpal was appreciated on VA examination in May 2006; and VA examination in April 2007 indicated a diagnosis of status post fracture of the right 5th phalynx with transient pain with activities of daily living. In the same way, VA examination in May 2010 indicated that the Veteran has an anatomical defect of the right 5th finger, limited extension of the proximal interphalangeal joint to 20 degrees with moderate swelling and tenderness, and moderate tenderness along the distal 5th metacarpal bones of the proximal half of the 5th finger as well as moderate tenderness on palpation. Indeed, the VA examiner in May 2010 indicated that there was gap of approximately 5 centimeters in distance between tip of the right 5th finger and the median transverse to fold of the right palm; that both strength and dexterity of the right hand were moderately decreased due to the right 5th finger condition; and that there was moderate functional impairment of the right hand due to the right 5th finger condition with respect to grasping, pushing, pulling, twisting, probing, writing, touching, and expression. In appraising the Veteran's residuals of a fracture of the 5th metacarpal of the right hand, he has continued to have pain, tenderness, and limitation of function after the injury, as evidenced by the evaluation results of private and VA examinations. The private examination in March 2005 and VA examination in May 2010, collectively, showed decreased grip strength and dexterity. The Board finds, therefore, that the Veteran's complaints pain and weakness in the right hand are credible. See Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). And while limitation of motion or ankylosis of the right little finger warrants only a noncompensable evaluation under either diagnostic code 5230 or 5227, it is the Board's judgment, nonetheless, that the evidence creates a question as to the most appropriate evaluation for the Veteran's residuals of a fracture of the 5th metacarpal of the right hand. Considering the objective of findings of an anatomical deformity of the right 5th metacarpal, decreased grip strength and dexterity, and the Veteran complaints of pain and weakness, and resolving all doubt in favor of the Veteran, the Board finds it reasonable to conclude that the above findings, coupled with the May 2007 and March 2010 VA examiners' findings of limitation of motion of the right little finger, result in a disability picture that more nearly approximates the criteria for a rating of 10 percent, as prescribed by diagnostic code 5003. In considering other potentially applicable diagnostic codes, the Board observes that under Diagnostic Code 5309 for injury to Muscle Group IX, which includes the intrinsic muscles of the hand and the corresponding diagnostic code 5227 for favorable or unfavorable little finger ankylosis of the major or minor hand. This provision applies to the intrinsic muscles that supplement the function of the forearm muscles in delicate manipulative movements. The intrinsic muscles include the thenar eminence; short flexor, opponens, abductors and adductor of the thumb; hypothenar eminence; short flexor, opponens and abductor of the little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei. A note to the criteria further states that the hand is so compact a structure that isolated muscles injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Rate on limitation of motion, minimum 10 percent. See 38 C.F.R. § 4.73, Diagnostic Code 5309 (2010). Diagnostic Code 5156 contemplates amputation of the little ringer, and a 20 percent rating is assigned for major or minor hand little finger amputation with metacarpal resection (more than half the bone lost). Without resection of the metacarpal, amputation at the proximal interphalangeal joint or proximal thereto warrants a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5156 (2010). However, in this case, there is no evidence of limitation of motion such as would provide for a higher rating. At the VA examinations in 2004 and 2006, the Veteran's right hand grip strength was described as full and normal. Despite the restrictive nature of his service-connected right little finger disability, he was able to grasp, twist, write, touch, and express with his hands. There is no additional functional loss due pain or weakness other than that contemplated by the currently assigned 10 percent rating. Moreover, as no medical professional has described the Veteran's disability as being manifested by an isolated muscle injury, or by actual amputation with metacarpal resection and more than half the bone lost or disability equivalent thereto, there is likewise no basis for a higher rating under Diagnostic Code 5156 or 5309. The Board further acknowledges the Veteran's complaints of increased pain, weakness and limitation of motion on use, and has considered such in conjunction with 38 C.F.R. § 4.40, 4.45, 4.59, consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board also notes that the Court has held that consideration of functional loss due pain and weakness is not required when, as in this case, the currently assigned rating is the maximum disability rating available for limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, such does not provide an additional basis for a higher initial evaluation. As established by the medical evidence and the Veteran's contentions, the right little finger demonstrates a degree of impairment comparable to limitation of motion. After review of the available Diagnostic Codes and medical evidence of record, Diagnostic Codes other than 5003 do not provide a basis to assign an evaluation higher than the 10 percent evaluation currently in effect, and assigned by the decision herein. The Veteran is currently receiving the highest available rating for his disability. The Board additionally notes that the identified decrease in strength and dexterity associated with the service-connected right 5th metatarsal fracture were factors considered to formulate the basis for the currently assigned 10 percent rating, and thus do not warrant an additional separate rating under the Note following Diagnostic Code 5227. 38 C.F.R. § 4.71a. For the reasons and bases expressed above, the record as a whole does show persistent symptoms that equal or more nearly approximate the criteria for an initial 10 percent rating, since the effective date of service connection for the residuals of a fracture of the 5th metacarpal of the right hand on June 1, 2004. See Fenderson, 12 Vet. App. at 125-26. That is to say, the Veteran's disability has been no more than 10 percent disabling since the effective date of his award, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition. C. Extraschedular Considerations Based upon the findings discussed in detail above, and following a full review of the record, the Board determines that the record evidence favors a finding that the Veteran's residuals of a fracture of the 5th metacarpal of the right hand should be rated at 10 percent, but no more, from June 1, 2004. See Fenderson, 12 Vet. App. at 126. Additionally, the Board finds that at no point since the effective date of the grant of service connection has the disability been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than 10 percent from June 1, 2004, on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment. This matter was implicitly considered and rejected by the RO. See Supplemental Statement of the Case, dated February 2011, citing 38 C.F.R. § 3.321(b)(1). Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject the provisions governing the award of monetary benefits, entitlement an initial 10 percent rating for the residuals of a fracture of the 5th metacarpal of the right hand, at least for the period from June 1, 2004, is granted. Entitlement to an initial rating in excess of 10 percent for the residuals of a fracture of the 5th metacarpal of the right hand is denied. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to the issue of entitlement to an initial rating in excess of 10 percent prior to May 3, 2010, and in excess of 40 percent from May 3, 2010, for chondromalacia patella with degenerative joint disease of the left knee. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Regrettably, this case must be remanded again for a VA examination. In the December 2009 remand, the Board instructed the RO via the AMC, in part, to arrange for the Veteran to undergo another VA examination at an appropriate VA medical facility. The Board's remand instructions with respect to the Veteran's left knee disability included that the VA examiner was to note the exact measurements for flexion and extension, comment on the extent of any incoordination, weakened movement and excess fatigability on use of the left knee, and indicate whether there is impairment of the tibia and fibula, to include nonunion of, with loose motion, requiring a brace; or malunion of, manifested by slight, moderate or marked knee or ankle disability. The Board notes that these instructions have not been completed by the VA examiner. In particular, the May 2010 VA examination noted that "flexion extension of the left knee 10 degrees to 30 degrees" thereby confusing the measurements of flexion and extension without separating the exact measurements of flexion from the exact measurements of extension. The May 2010 VA examiner also did not address the extent of any incoordination on use of the left knee and did not discuss whether there was any impairment of the tibia or fibula due to the left knee disability. Thus, the Board finds it is again necessary to remand the claim again for full compliance with the Board's December 2009 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board finds that the claims file should be forwarded to the May 2010 VA examiner to: (1) separately specify the exact measurements of flexion and the exact measurements of extension of the left knee, (2) comment on the extent of any incoordination on use of the left knee, and (3) indicate whether there is impairment of the tibia and fibula, to include nonunion of, with loose motion, requiring a brace; or malunion of, manifested by a slight, moderate or marked left knee disability. Accordingly, the case is REMANDED for the following action: 1. To the extent possible, the RO/AMC should send the claims file to the same VA examiner who performed the May 2010 VA examination (and, if said examiner is no longer available, then schedule the Veteran for a VA examination by an appropriate examiner) to clarify his opinion with respect to the following: (a). Please separately specify the exact measurements of flexion and the exact measurements of extension of the left knee. (b). Please comment on the extent of any incoordination on use of the left knee. (c). Please indicate whether there is impairment of the tibia and fibula, to include nonunion of, with loose motion, requiring a brace; or malunion of, manifested by a slight, moderate or marked left knee disability. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO, via the AMC, is asked to readjudicate the issue of entitlement to an initial rating in excess of 10 percent prior to May 3, 2010, and in excess of 40 percent from May 3, 2010 for chondromalacia patella with degenerative joint disease of the left knee. The readjudication of the initial ratings assigned for the Veteran's left knee disability should include consideration of whether separate ratings are warranted for limitation of flexion, limitation of extension, and instability, or staged ratings pursuant to Fenderson (cited to above). The RO, via the AMC, should also consider whether the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are (or are not) met. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs