Citation Nr: 0810239 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-27 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable rating for residuals of a right fourth finger fracture. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1980 to August 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that granted service connection for residuals of a right fourth finger fracture, rated noncompensable. A Travel Board hearing was held before the undersigned in May 2007. A transcript of the hearing is of record. In September 2007, the Board remanded the case for additional development. The matter of entitlement to an extraschedular rating for residuals of right fourth finger fracture is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action is required on his part. FINDING OF FACT The veteran's right fourth finger fracture residuals do not include amputation or extremely unfavorable ankylosis of the finger warranting rating as amputation or based on limitation of other digits or interference with overall function of the hand. CONCLUSION OF LAW A schedular compensable rating is not warranted for the veteran's residuals of a right fourth finger fracture. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5227, 5230, 5156 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the rating decision on appeal granted service connection for residuals of right fourth finger fracture and assigned an initial rating and effective date, statutory notice had served its purpose and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The June 2005 statement of the case (SOC) properly provided notice on the downstream issue of an increased initial rating. (Notably, the veteran has not contested the effective date assigned.) Regardless, a September 2007 letter provided notice of what evidence was needed to establish higher ratings, of the veteran's and VA's responsibilities in claims development, and that he should submit any pertinent evidence in his possession. The claim was thereafter readjudicated by the December 2007 supplemental SOC. Notice has been adequate. Regarding VA's duty to assist, the veteran was afforded VA examinations in December 2003 and October 2007. He has not identified any additional evidence pertinent to the claim. VA's assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background The veteran's service medical records show he sustained a fracture of the midshaft of the fourth metacarpal in early 1983. X-ray report in February 1983 noted the fracture was almost completely healed. X-ray in March 1983 noted the fracture had healed. There were no other complaints or findings related to the right hand during service. On December 2003 VA compensation and pension examination the examiner noted that the right hand looked entirely normal except that the knuckle formed by the fourth metacarpal head was not as prominent as the other knuckles. The veteran was capable of a full fist and full grip. X-rays were unremarkable. In a report dated in May 2006, the VA examiner noted that he had nothing to add to his previous report, and that the veteran did not report any worsening of his hand. On VA examination in October 2007, the veteran described inability to hold heavy objects. The examiner noted that the veteran was a U.S. Postal worker and that he was "finding it difficult to work there because he is unable to grasp with his right hand." The examiner noted the veteran had loss or lack of prominence of the fourth knuckle on the right side and weakness in extending and flexing the right fourth finger. Handgrip strength was reduced to 4/5 due to lack of strength in the right fourth finger. He was able to pull his distal phalanx of the right hand to the mid palmar crease with difficulty. The examiner described clear reduction of gripping strength of moderate severity. The veteran was able to handle light objects such as paperclips and coins, and to open buttons, but heavier objects caused him a great deal of difficulty. III. Legal Criteria and Analysis Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. Separate rating codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. In a claim disagreeing with the initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Residuals of a fourth finger fracture are rated based on limitation of motion or ankylosis in the finger, and favorable or unfavorable ankylosis of the finger or any limitation of motion of the finger is to be rated noncompensable. Codes 5227, 5230. A compensable rating for fourth finger disability requires amputation. See Code 5155. With ankylosis, it must also be considered whether an additional evaluation is warranted for resulting limitation of motion of other digits or for interference with overall function of the hand. See Note following Code 5227. Extremely unfavorable ankylosis (as described in note (3)(i) preceding Code 5216) may be rated as amputation. 38 C.F.R. § 4.71a. As outlined above, the governing schedular criteria provide for a compensable rating for fourth finger disability only where there is amputation of the finger or equivalent impairment (e.g. extremely unfavorable ankylosis as in the note cited above). Here, the fourth finger is intact, and has significant motion. Consequently, the requirements for a compensable rating are not met. There are situations where application of 38 C.F.R. §§ 4.40 and 4.45 is warranted to compensate a veteran for functional loss due to pain, weakened movement, excess fatigability, incoordination or pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). As 0 percent is the maximum rating under Codes 5227 and 5230, this precludes a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether a higher rating is assignable under 38 C.F.R. §§ 4.40 and 4.45). See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is no basis for a schedular compensable rating for the veteran's service connected right fourth finger fracture residuals. The preponderance of the evidence is against this claim. Hence, it must be denied. ORDER A schedular compensable rating for residuals of a right fourth finger fracture is denied. REMAND While the veteran's right fourth finger disability does not meet the objective criteria for a schedular compensable rating, the record, and specifically the October 2007 VA examination report notation that the veteran was "finding it difficult to work [at his Postal Service job] because he is unable to grasp with his right hand," and that that gripping heavier objects than paperclips or coins caused him "a great deal of difficulty," raises the question of whether referral for extraschedular consideration under 38 C.F.R. § 3.321 is indicated. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, "the regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required." Floyd, 9 Vet. App. at 95. Development of the evidence in the matter of whether referral for extraschedular consideration is indicated is incomplete. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the veteran to submit, or identify for VA to secure (with his cooperation) evidence documenting the impact that his service connected right fourth finger disability has on his employment, to include specifically whether it has caused him to miss any time at work or caused his reassignment. The RO should arrange for any development suggested by his response. 2. The RO should then review the evidence, and if there is any evidence of marked interference with employment, the RO shall refer the matter of the rating for residuals of fracture of right fourth finger to either the Under Secretary for Benefits or to the Director of Compensation and Pension for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO should issue an appropriate supplemental statement of the case and afford the veteran the opportunity to respond. The matter should then be returned to the Board for further appellate review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs