Citation Nr: 0810260 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-07 472 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for persistent daytime hypersomnolence. 2. Entitlement to service connection for bilateral visual impairment with retinal scarring. 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral restless leg syndrome. 4. Entitlement a compensable evaluation for service- connected residuals of the right fifth metacarpal status post open reduction internal fixation until April 4, 2005 and an evaluation in excess of 20 percent effective April 5, 2005. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from June 1981 to June 2001. This matter comes to the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the RO. Regarding the increased rating issues herein, the veteran is contesting the initial ratings assigned. The RO initially assigned a noncompensable rating to the service-connected right fifth metacarpal disability. That rating was increased to 20 percent by November 2006 rating decision. A decision awarding a higher rating, but less that the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. In January 2008, the veteran testified at a hearing before the undersigned at the RO. At his hearing, the veteran withdrew his appeal regarding the issues of entitlement to service connection for left eye ptosis, chronic pain and stiffness of the fingers bilaterally, chronic pain and stiffness of the toes bilaterally, bilateral chronic knee pain, scars of the knees bilaterally, liver damage from hepatitis A and hepatitis B, anemia, and chronic epitaxis and entitlement to an initial rating in excess of zero percent for service-connected head trauma with a temporal laceration. The issues of entitlement to service connection for daytime hypersomnolence, entitlement to service connection for bilateral visual impairment with retinal scarring, and entitlement to an evaluation in excess of 10 percent for service-connected restless leg syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Residuals of the right fifth metacarpal status post open reduction internal fixation were manifested by no more than right hand paresthesias from July 1, 2001 to April 4, 2005 and by no more than a mild disability picture from April 5, 2005. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation of 20 percent, but no higher, for the veteran's service-connected residuals of the right fifth metacarpal status post open reduction internal fixation have been met from July 1, 2001 to April 4, 2005, and the criteria for an evaluation in excess of 20 percent have not been met from April 5, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 4.3, 4.7, 4.20, 4.71a, 4.124a, Diagnostic Code 5227-8514 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran in June 2002, March 2006, and March 2007 that fully addressed all four notice elements and sent prior to the initial AOJ decision in this matter. The letters informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. The VCAA duty to notify has not been satisfied with respect to the following notice elements outlined in Vazquez-Flores. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05-0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the veteran was informed of the relevant regulations in the January 2005 statement of the case, and he has not expressed any confusion or lack of understanding since that time. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a medical opinion was obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, the veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. The veteran was afforded a VA medical examination in April 2005. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review 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 the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Discussion Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). When a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The veteran's service-connected residuals of the right fifth metacarpal status post open reduction internal fixation has been rated zero percent disabling by the RO before April 5, 2005 and 20 percent disabling effective April 5, 2005 under the provisions of Diagnostic Code 5227-8514. 4.20, 4.71a, 4.124a. VA's criteria for evaluating finger injuries were revised, effective August 26, 2002, during the initial evaluation period. As explained below, the veteran's finger disability does not warrant a compensable rating under the former or current criteria. The former rating criteria provided a noncompensable disability rating for ankylosis of any finger other than the thumb, index finger, or middle finger. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2002). The former criteria also provided that extremely unfavorable ankylosis would be rated as amputation under Diagnostic Codes 5152 through 5156. The new criteria provide for a noncompensable evaluation for ankylosis of the little finger, whether it is favorable or unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (effective from August 26, 2002). Again, a noncompensable rating is the only schedular rating available for this disorder. The rating schedule indicates that VA can also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Id. The new rating criteria also provide evaluations for limitation of motion of fingers. For the little finger, the only schedular rating provided is a noncompensable rating for any degree of limitation of motion, whether it affects the minor or the major hand. 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2007). Under 38 C.F.R. § 4.124a Diagnostic Code 8514, a 70 percent rating is assigned for complete paralysis of the radial nerve with manifestations such as drop of the hand and fingers; or with the wrist and fingers perpetually flexed; or with the thumb adducted falling within the line of the outer border of the index finger; or inability to extend the hand at the wrist, extend the proximal phalanges of the fingers, extend the thumb, or make lateral movement in the wrist; with supination of the hand or extension or flexion of the elbow weakened; or loss of synergic motion of the extensors seriously impairing hand grip. Id. Ratings of 50 percent, 30 percent, and 20 percent are assigned for severe, moderate, and mild incomplete paralysis of the radial nerve, respectively. Id. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Just prior to retirement in November 2000, the veteran reported numbness of the right hand, and paresthesias of the right hand were said to be likely secondary to nerve damage from 1986 right little finger injury and subsequent surgery. On April 2005 VA orthopedic examination report, the examiner indicated that in 1986, the veteran slipped on ice and sustained a right fifth metacarpal fracture. The fracture was immobilized with open reduction and placed in a cast. It was not, however, healing properly, and pins were put in place for six months. The veteran reported that there was residual numbness of the right third, fourth, and fifth fingers, and right hand grip was reduced by 20 percent. As a consequence, the veteran could not fire a handgun, bowl, play sports, and wore a brace to bed. Objective examination of the right fifth finger revealed a scar on the right wrist that was four centimeters in length and well healed. Range of motion of the finger was normal, but right hand grip was reduced by 20 percent. There was some pain on palpation of the right wrist, but right wrist range of motion was normal. Range of motion of the fingers was normal. There was diminished sensation of the right fifth finger, fourth finger, and third finger. The examiner diagnosed residuals of a right fifth finger fracture with open reduction, internal fixation, and subsequent placement of pins with the result of right hand weakness and numbness of the right third, fourth, and fifth fingers constituting a minimal disability picture and no progression. Based on the foregoing evidence, it appears that a compensable evaluation under Diagnostic Code 5227 is not warranted at any time and under any version of that or other potentially applicable regulations. The evidence reflects no symptoms commensurate with amputation of the right fifth finger, and the other applicable provisions warrant no more than a zero percent evaluation. Under Diagnostic Code 8514, a 20 percent evaluation is warranted from July 1, 2001, namely, both before and after April 5, 2005. During both periods of time, the evidence has shown numbness of the right hand and perhaps some weakness and impaired grip. However, as the disability has been objectively characterized as minimal and nothing more, a 30 percent evaluation is not for application at any time during the appellate period. 38 C.F.R. § 4.124a, Diagnostic Code 8514; Fenderson, supra. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Because the foregoing manifestations have not been objectively found, no additional compensation is warranted under the above provisions. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that the service connected right fifth finger disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant an even more favorable decision. ORDER A 20 percent evaluation for service-connected residuals of the right fifth metacarpal status post open reduction internal fixation is warranted from July 1, 2001 to April 4, 2005 subjective to the law and regulations governing the payment of VA monetary benefits. An evaluation in excess of 20 percent for service-connected residuals of the right fifth metacarpal status post open reduction internal fixation beginning April 5, 2005 is denied. REMAND The veteran's January 2008 hearing testimony reveals that he has sought medical treatment related to the issues still on appeal. Records of that treatment have not been associated with the claims file. He is receiving regular treatment for restless leg syndrome that could also shed light on the hypersomnolence claim, and he has indicated that his eyes were examined in the past year. It is clear that some of this medical treatment has taken place at private facilities. Other treatment was provided in Dallas and Houston, but the record is not entirely clear as to whether that treatment has been provided by VA or by a private facility. The veteran has received private medical treatment by one Dr. Bucan in Flower Mound, Texas. After ascertaining where other treatment for the eyes, restless leg syndrome, and hypersomnolence has taken place, the RO should obtain any necessary release and make efforts to associate those records with the claims file. The RO must send the veteran corrective notice regarding VCAA that incorporates the mandates contained in Vazquez-Flores. In Vazquez-Flores, the Court held that with respect to increased rating claims, 38 U.S.C.A. § 5103(a) requires VA to notify those claiming VA benefits that to substantiate the claim, (1) the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. The corrective VCAA notice must advise the veteran of the foregoing, as this matter contains increased a rating claim. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Send the veteran a corrective VCAA notice that apprises him of the information related to increased rating claims, as outlined by the Court in Velazquez-Flores. Ask the veteran to identify all private and VA medical facilities where he has received medical treatment for restless leg syndrome, sleep apnea, hypersomnolence, and/or the eyes. 2. After securing the necessary release obtain medical records from Dr. Bucan in Flower Mound, Texas and any other medical facility identified by the veteran where treatment has been provided for restless leg syndrome, sleep apnea, hypersomnolence, and/or the eyes. 3. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The veteran has the right to submit additional evidence and argument on the 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 or by the Court 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). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs