Citation Nr: 0812545 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 00-04 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable disability evaluation for residuals of a chip fracture of the second finger of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran had active service from July 1977 to July 1980, and he served in the Army National Guard of South Carolina from February 1981 to July 1998. The service in the Army National Guard included periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that granted service connection and assigned an initial noncompensable disability evaluation for residuals of a chip fracture of the second finger of the right hand. The veteran perfected a timely appeal of this determination to the Board. This matter was before the Board in June 2001, June 2004, September 2005, and November 2006, and each time was remanded. FINDINGS OF FACT 1. The medical record does not reflect that there has ever been any ankylosis of the right second finger. 2. Even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or any other factors are not contemplated in the relevant rating criteria, the veteran's chip fracture residuals of the second finger have not been shown to approximate limitation of motion of the index finger with a gap of one inch (2.5- centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or, with extension limited by more than 30 degrees. 3. There is no resulting limitation of motion of other digits, interference with overall function of the hand, or arthritis due to the veteran's chip fracture residuals of the second finger. CONCLUSION OF LAW The criteria for an initial compensable disability evaluation for residuals of a chip fracture of the second finger of the right hand have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5225, 5229 (2002, 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, November 2001, June 2003, July 2004, November 2005, and November 2006 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to in initial increased rating, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the United States Court of Appeals for Veterans Claims (Court) held that in such situations, the appellant has a right to a VCAA content- complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VCAA-compliant letter was issued to the veteran in November 2006. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran in November 2007. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in November 2006. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). It is well to observe that service connection for the residuals of a chip fracture of the second finger of the right hand has been established and an initial noncompensable rating for that condition has been assigned. Thus, the veteran has been awarded the benefit sought, and his claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. As such, section 5103(a) notice is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. Also, it is of controlling significance that after awarding the veteran service connection for the residuals of a chip fracture of the second finger of the right hand and assigning an initial disability rating for that condition, he filed a notice of disagreement contesting the initial rating determination. The RO furnished the veteran a Statement of the Case that addressed the initial rating assigned for his residuals of a chip fracture of the second finger 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 and submitting additional medical evidence in support of his appeal. See 38 U.S.C.A. §§ 5104(a), 7105, 5103A (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the veteran throughout the remainder of the administrative appeals process, and similarly accorded the veteran and his representative a fair opportunity to prosecute the appeal. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, post service private medical records, VA medical treatment records, VA compensation and pension examinations, the veteran's testimony at his December 1999 RO hearing, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Increased Initial Rating The veteran argues that he is entitled to an initial compensable disability evaluation for residuals of a chip fracture of the second finger of the right hand. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is 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, 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. Brown, 12 Vet. App. 119, 126 (1999). The Board notes that the rating criteria for ankylosis and limitation of motion of the fingers were amended in July 2002. See 67 Fed. Reg. 48,784-48,787 (July 26, 2002). The changes were effective as of August 26, 2002. Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). As the veteran was awarded service connection prior to August 26, 2002, the Board will consider the regulations in effect both prior to and since August 26, 2002. The Board observes, however, that when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C.A. § 5110(g) (West 2002); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to August 26, 2002 the rating criteria provided that a 10 percent rating was warranted for either favorable or unfavorable ankylosis of the index finger of the hand (for both the major and minor hand). 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5225 (2002). Subsequent to August 26, 2002, a rating based on limitation of motion of the fingers was added. Under the new rating criteria, a 10 percent rating is warranted for either favorable or unfavorable ankylosis of the index finger of either hand. 38 Also, VA considers 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. 38 C.F.R. § 4.71a DC 5225. A 10 percent rating is available for limitation of motion of the index finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or, with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229. The Board also notes that, under Diagnostic Code 5003, 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 noncompensable 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. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, DC 5003. In addition, when evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The veteran was given a VA examination in December 2001. At the time, the veteran reported the following: his finger locked at the distal interphalangeal joint; he had occasional pain, which increased with cold weather; he had no physical activity limitations and no weakness or tingling, although he was unable to hold things for a long time with both hands; and he had pain across both palms and both proximal phalanges. Examination of the right middle finger revealed flexion at the proximal interphalangeal joint of 0 to 105 degrees, at the distal interphalangeal joint of 0 to 55 degrees, with ulnar deviation at the distal interphalangeal joint of 10 degrees, but that this was symmetrical in the right and left hands. He had 5/5 motor strength in all planes about the wrists, fingers, and intrinsics, and he had some early clubbing bilaterally. He reported decreased sensation in the right hand verses the left, especially on the fourth finger, especially on the palmar surface. The examiner stated that the chip fracture of the right third finger did not appear to be causing the veteran any disability at the time, and that there was not severe painful motion or weakness of the affected finger, no evidence of pain or weakness with significantly limited functional ability during flare-ups or when the finger was used over a repeated period of time, and the examiner did not see whether there was any weakness or excessive fatigability or incoordination with movements. On January 2002 x-ray examination, frontal, lateral, and oblique views of the right and left hand demonstrated no acute fracture or dislocation, joint spaces were preserved, and incidental note of a right carpal boss was noted, which was a normal variant. The veteran was diagnosed as having unremarkable hands. The veteran was afforded another VA examination in December 2005. On examination, the veteran reported frequent pain in all of his finger joints, but demonstrated full range of motion, including full extension and full flexion of all of the fingers and the ability to make a complete fist and to touch the fingertips to the palmar crease. Grip strength was approximately normal and bilaterally equal, and finger spreading and finger dexterity were also normal. The veteran was diagnosed as having apparent old chip fracture of the right second finger distal to the interphalangeal joint with current x-rays pending. The examiner opined that there was no pain on range of motion or flare-ups of any of the joints except as sated, and that all joints had no additional limitations by pain, fatigue, weakness or lack of endurance following repetitive use. December 2005 x-rays showed some minimal cystic changes in the carpus bilaterally, with no fractures or dislocations, and that the remainder of the hands were unremarkable. It was noted that the cystic changes in the carpus were nonspecific but could be seen with gout, calcium pyrophosphate dehydrate, and osteoarthritis, and that clinical correlation was needed. The veteran was diagnosed as having cystic changes in the carpal bones bilaterally. In a December 2006 addendum opinion, the December 2005 VA examiner indicated that the December 2006 x-rays failed to show any abnormality of the fingers, and that the only abnormalities noted were minimal cystic changes in the carpus bilaterally. The examiner stated that there were no radiologic abnormalities of the hand or fingers, that clinical examination of the fingers was normal, and, therefore, in spite of the history of possible chip fracture of the right hand, he saw no clinical evidence for any current diagnosis or impairment or disability related to the right hand or fingers. The wrist abnormalities on x-ray were not considered secondary to prior problems with the second finger or other fingers, and therefore were not considered related to any medical issues in service. The examiner opined that there was no medical disability affecting any finger or other structure of the right hand or wrist which was likely to be related to or having its onset in service. An April 2007 addendum indicated that there was no pain on range of motion or flare-ups on any of the above joints except as stated above, and that all above joints had no additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. After reviewing the record, the Board finds that the veteran's residuals of a chip fracture of the 2nd finger of the right hand do not more closely approximate the criteria for a 10 percent disability rating under any relevant Diagnostic Code than those for a 0 percent disability rating. First, the medical record does not reflect that there has ever been any ankylosis of the right second finger. Thus, a compensable disability rating under DC 5225 is not warranted. Second, even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or any other factors are not contemplated in the relevant rating criteria, the veteran's chip fracture residuals of the second finger have not been shown to approximate limitation of motion of the index finger with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or, with extension limited by more than 30 degrees. In this regard, the medical evidence also does not reflect any resulting limitation of motion of other digits or interference with overall function of the hand due to the veteran's chip fracture residuals of the second finger. On December 2005 VA examination, it was noted that, although the veteran reported frequent pain in all of his finger joints, he demonstrated full range of motion, including full extension and full flexion of all of the fingers and the ability to make a complete fist and touch the fingertips to the palmar crease, that grip strength was approximately normal and bilaterally equal, and that finger spreading and finger dexterity were also normal. Also, the VA examiner opined that there was no pain on range of motion or flare-ups of any of the joints except as stated, and that all joints had no additional limitations by pain, fatigue, weakness or lack of endurance following repetitive use. Furthermore, the VA examiner stated that the December 2005 x-rays failed to show any abnormality of the fingers, with no radiologic abnormalities of the hand or fingers, that clinical examination of the fingers was normal, and that, therefore, in spite of the history of possible chip fracture of the right hand, he saw no clinical evince for any current diagnosis nor impairment nor disability related to the right hand or fingers. Thus, even considering the veteran's subjective complaints of pain and flare-ups, the medical evidence fails to demonstrate that the veteran's chip fracture residuals of the second finger approximate limitation of motion of the index finger with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or, with extension limited by more than 30 degrees. Therefore, a compensable disability rating under DC 5229 is not warranted. Finally, the Board has considered DC 5003, but notes that neither arthritis due to residuals of a chip fracture of the second finger of the right hand, nor any arthritis involving the veteran's fingers at all, have been demonstrated in the medical evidence. Rather, the veteran's fingers have consistently been noted to be unremarkable on x-ray examination. In short, there is no basis in the rating criteria of any pertinent Diagnostic Code for a compensable rating for residuals of a chip fracture of the second finger. Accordingly an initial compensable rating for residuals of a chip fracture of the second finger is not warranted. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial compensable disability evaluation for residuals of a chip fracture of the second finger of the right hand is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs