Citation Nr: 0810810 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-31 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for service-connected status post open reduction internal fixation (ORIF) of right olecranon fracture. 2. Entitlement to an evaluation in excess of 10 percent for service-connected status post ORIF of right hip and pelvic fracture. 3. Entitlement to a compensable disability evaluation for status post fracture of the right 4th finger. ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from December 1997 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The veteran submitted evidence of having surgery to remove hardware from his service-connected status post ORIF of the right olecranon fracture in December 2005. The evidence of record is not clear how long of a convalescent period was necessitated as a result of the surgery. However, the fact of the surgery in this instance is sufficient to raise an inferred issue of entitlement to a temporary total disability evaluation under 38 C.F.R. § 4.30. As that issue has not been developed or certified on appeal, it is referred to the RO for such further development as may be necessary. The issues of entitlement to higher evaluations for status post ORIF of right olecranon fracture and status post ORIF of right hip and pelvic fracture 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 The service-connected residuals which are attributable to the veteran's injury of the right 4th finger are manifested by a full range of motion, without evidence of pain, weakness, lack of endurance, fatigue or incoordination with repetitive use. CONCLUSION OF LAW The criteria for a compensable disability evaluation for status post fracture of the right 4th finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5155, 5227, 5230 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). 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 (2007). The veteran's claim for a higher evaluation for his disability of the right 4th finger is an original claim that was placed in appellate status by a notice of disagreement (NOD) expressing disagreement with an initial rating award. As such, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The veteran suffered an injury to his right 4th finger while playing basketball in January 2000. The service medical records (SMRs) show a clinical impression of a nondisplaced, closed fracture of the proximal phalange. However, x-rays at the time were interpreted as normal. The veteran was treated with a cast and immobilization of the right 4th and 5th fingers. The veteran's injury was noted by him on a Report of Medical History dated in January 2000. The examiner indicated that there were no problems from the injury. No residuals of the injury were noted on the veteran's separation physical examination in July 2003. The SMRs show that the veteran is right hand dominant. The veteran submitted his claim for VA disability compensation benefits in August 2003. He was afforded a VA examination that same month. The veteran gave a history of a fracture of the right 4th finger in service. The examiner said the veteran denied any residual symptoms from the injury. The examiner also said the veteran was able to tie his shoelaces, fasten buttons, and pick up a piece of paper and tear it without significant difficulty. There was no evidence of swelling, effusion, abnormal movement or instability of the right 4th finger. The range of motion was given as active distal interphalangeal (DIP) joint flexion to 90 degrees, active proximal interphalangeal joint flexion to 100 degrees, and metacarpal phalangeal (MP) joint flexion to 90 degrees. The examiner stated that the range of motion was not limited by pain, weakness, lack of endurance, or incoordination. X-rays of the right hand were said to be negative. The examiner said that there was no evidence of bony deformity or acute inflammatory changes of the finger. He said the range of motion was within normal limits and there were no significant functional limitations. The examination diagnosis was status post right hand [sic] fracture, without residuals. The veteran was granted service connection for status post fracture of the right 4th finger in September 2003. He was given a noncompensable disability evaluation. The veteran submitted his notice of disagreement (NOD) in September 2004. He said he disagreed with the rating decision in regard to his right elbow, right hip and pelvis, and right 4th finger. He provided specific comments as to how he believed his right elbow and hip/pelvis disabilities were worse. He made additional comments regarding those two disabilities at the time of his substantive appeal in September 2005. However, the veteran did not express any comments regarding his right 4th finger. The veteran was scheduled for a VA examination in September 2006. Information of record indicates that he failed to report for the examination. The veteran did submit private treatment records from D. Chao, M.D., and the RO obtained additional records from Dr. Chao. The records covered a period from September 2005 to October 2007. The records related to treatment for the veteran's right elbow and hip/pelvis. There was no mention of complaints or treatment for his right 4th finger. The veteran's status post fracture of the right 4th finger has been evaluated as noncompensable under Diagnostic Code 5230 for disabilities involving limitation of motion for the 4th or 5th finger of the hand. 38 C.F.R. § 4.71a (2007). Under Diagnostic Code 5230 a noncompensable evaluation is the only evaluation available, no matter the degree of limitation of motion, or whether it is for the major or minor hand. Thus the veteran is already receiving the maximum schedular disability evaluation allowed for limitation of motion of the right 4th finger. The Board has also considered the veteran's disability under Diagnostic Code 5227, pertaining to ankylosis of the 4th or 5th finger. As with the limitation of motion criteria, a noncompensable disability evaluation is the maximum evaluation for ankylosis, whether it is favorable or unfavorable, and whether it is the major or minor hand. Id. A Note following the criteria for evaluating ankylosis of individual digits provides 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. Diagnostic Code 5155 provides for a 10 percent disability evaluation for amputation of the 4th finger without metacarpal resection, at the PIP joint, or proximal thereto. This applies to either the major or minor hand. 38 C.F.R. § 4.71a. An evaluation for amputation is not warranted in this case. The evidence of record does not demonstrate any residual from the veteran's injury in service. His SMRs noted that he had no residuals. The August 2003 VA examination found no evidence of any significant functional limitation. Although the examiner used the term "significant" it can be argued that the objective evidence demonstrates that there is no functional limitation given that there is no limitation of motion, pain, weakness, fatigue, or incoordination present and the veteran does not complain of any residuals. The Board has reviewed the provisions of 38 C.F.R. §§ 4.40, 4.45 (2007) in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's affected right 4th finger. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, when a disability is assigned the maximum rating for loss of range of motion, application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca is not required. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the objective evidence of record demonstrates that the veteran does no experience any of the above factors. In this case, the veteran's noncompensable evaluation is the maximum schedular evaluation under limitation of motion of the 4th finger. Therefore, there is no basis to consider the assignment of an increased evaluation under DeLuca or 38 C.F.R. §§ 4.40 and 4.45. Finally, the Board finds that there is no showing that the veteran's finger disability reflects so exceptional or so unusual a disability picture as to warrant a compensable rating on an extra-schedular basis. The condition is not productive of marked interference with employment, required frequent periods of hospitalization or otherwise rendered impractical the application of the regular schedular standards. In the absence of these factors, the criteria for submission for assignment of an extra-schedular rating are not met. Thus, the Board is not required to remand this claim for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2007)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The veteran is challenging the initial evaluation assigned following the award of service connection for his disability involving the right 4th finger. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The veteran was provided notice in August 2003. His claim was substantiated when service connection was granted, also in August 2003. Thus, VA has satisfied its duty to provide notice under the law. The Board also finds that VA has adequately fulfilled its obligation to assist the veteran in obtaining the evidence necessary to substantiate his claim. His SMRs were obtained and associated with the claims folder. He was afforded a VA examination. He submitted private treatment records in support of his claim. He elected to not have a hearing in his case. The veteran has not alleged that there is any outstanding evidence pertinent to his claim. The duty to assist may require VA to provide a thorough and contemporaneous medical examination where the evidence does not adequately reveal the current state of the veteran's disability. See Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board notes the veteran was last afforded a VA examination in August 2003. However, there is no requirement for a new examination in this case. The veteran was granted service connection, and a noncompensable disability evaluation, for his right 4th finger disability based on his SMRs and the VA examination from August 2003. No residuals of the injury were noted in the SMRs nor at the time of the VA examination. The veteran has not provided any specific information of the presence of any residual, to include pain. He has not alleged that his disability has increased beyond the evaluation assigned in August 2003 or that the evidence of record is not adequate to evaluate his level of disability. See Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999 (No examination required in absence of evidence showing some increase in disability). Further, the Court has held that the mere passage of time does not require that VA provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). ORDER Entitlement to a compensable disability evaluation for status post fracture of the right 4th finger is denied. REMAND The veteran suffered a fracture of the right olecranon and of the right hip and pelvis in a motor vehicle accident (MVA) in service. Treatment for the injuries included surgical implantation of hardware. The veteran submitted private treatment records from Dr. Chao that show the veteran had removal of hardware from the right ulna in December 2005. The veteran was noted to be contemplating surgery for removal of a plate from his pelvic area at that time but did not have the surgery. An entry from October 2007 again notes that the veteran contemplated surgical removal of the plate. The wording of the entry was such that the surgery was likely to go ahead in the very near future. Unfortunately, there were no additional medical records to indicate whether the veteran had the surgery. The veteran was last examined for his service-connected right olecranon and right hip/pelvis disabilities in August 2003. The Board notes that the veteran failed to report for a VA examination in September 2006. However, he should be afforded another opportunity for an examination to provide a current assessment of his disabilities. Any additional pertinent medical records should be obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the veteran to obtain the names and addresses of all medical care providers who have treated him for his right olecranon and right hip/pelvis disabilities since August 2003. After securing the necessary release(s), the RO should obtain those records that have not been previously secured. 2. The veteran should be afforded an examination to determine the nature and severity of his service-connected right olecranon disability. The claims folder must be made available to the examiner, in conjunction with the examination. All necessary tests should be conducted which the examiner deems necessary. The examiner should review the results of any testing prior to completion of the report. 3. The veteran should be afforded an examination to determine the nature and severity of his service-connected right/pelvis disability. The claims folder must be made available to the examiner, in conjunction with the examination. All necessary tests should be conducted which the examiner deems necessary. The examiner should review the results of any testing prior to completion of the report. 4. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issues on appeal. If the benefits sought on appeal are not granted, the veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs