Citation Nr: 0813101 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-13 961A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for residuals of a right index finger injury, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from November 1977 to August 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas in August 2005. In the VA Form 9 the appellant submitted in May 2006, he requested a Travel Board hearing. In August 2006, the appellant requested a decision review officer (DRO) hearing; this was scheduled for November 2006, but the appellant failed to report. In August 2007, the appellant's representative submitted a written statement in which he stated that the appellant no longer wanted to have a Board hearing. Therefore, as there is no current outstanding hearing request, the case is ready for appellate review. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The appellant is right-handed. 2. Residuals of the in-service right index finger injury are manifested by subjective complaints of decreased grip strength and dexterity, pain and pain on use and objective findings of six degrees of ulnar drift of the right index finger, an inability to flex the right index finger closer than three inches to the palmar crease and 5/5 right hand grip and pinch strength. 3. There is no physical or radiographic evidence of right index finger ankylosis or of bony involvement proximal to the proximal interphalangeal joint. 4. The right index finger disability is not equivalent to an amputation at the proximal interphalangeal joint or proximal thereto. 5. Residual scarring has not been shown to be tender and painful on objective demonstration nor has limitation of function of the right index finger due to the scarring been shown. 6. The appellant has complained of numbness of the right index finger and there is objective medical evidence of some decreased sensation on the extensor surface of the proximal phalanx. CONCLUSIONS OF LAW 1. An evaluation in excess of 10 percent for the orthopedic and scarring residuals of the right (major) index finger injury is not warranted. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.40, 4.41, 4.45, 4.59, 4.68, 4.71, 4.71(a), 4.118, and Diagnostic Codes 5153, 5225, 7802, 7803, 7804, 7805 (2007). 2. The criteria for a separate evaluation of 10 percent, but not more, for the neurological residuals of the right (major) index finger disability have been met. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.102, 3.159, 3.321, 4.124a, Diagnostic Codes 8515, 8615, 8715 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 representative 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 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). The appellant was notified of the information necessary to substantiate his increased rating claim by correspondence dated in May 2005 (prior to the initial AOJ decision in this matter). That document informed the appellant of VA's duty to assist and what kinds of evidence the RO would help obtain. In that letter, the RO informed the appellant about what was needed to establish entitlement to an increased rating. The letter informed the appellant of what evidence was required to substantiate the increased rating claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The RO did advise the appellant of such information in correspondence dated in March 2006. 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, 22 Vet. App. 37 (2008). The appellant was provided with such notice in the May 2005 VA letter. 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. Such notice errors may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The appellant was provided with such general notice in the August 2005 rating which was subsequently redone in the April 2006 Statement of the Case (SOC). 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. The appellant was provided with such notice in the March 2006 VA letter and in the April 2006 SOC. 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, 22 Vet. App. 37 (2008). This information was conveyed to the appellant in the May 2005 VA letter, as well as the March 2006 VA letter. 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, 22 Vet. App. 37 (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, 22 Vet. App. 37 (2008). In this case, the Board finds that any notice error(s), such as the provision of notice for the right index finger increased rating claim after the initial decision by the AOJ, did not affect the essential fairness of the adjudication because the appellant could be expected to understand what was needed to establish an increased rating from the various notice letters sent to him by the RO and from the SOC. In particular, the May 2005 letter informed the appellant of the need to submit evidence that his disability had increased in severity; that he should submit medical evidence; that he could submit statements from individuals who could describe the manner in which the disability had become worse; that he should inform the RO about treatment at VA facilities; that he could submit his own statement about his condition; and that he should submit all pertinent evidence in his possession. The appellant was informed of the Diagnostic Code requirements for an increased rating in the rating decision and the SOC. The March 2006 VA letter informed the appellant that ratings from zero to 100 percent are assigned to disabilities and provided additional examples of pertinent evidence he could submit. Therefore, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed for his increased rating claim. Although complete notice was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Board observes that the claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Therefore, notwithstanding Pelegrini, to decide the appeal would not be prejudicial error to the veteran. Thus, the Board finds that any error in the timing of the appellant's notification of the VCAA constituted harmless error. Proceeding with this matter in its current procedural posture would not therefore inure to the appellant's prejudice. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d). Here, VA outpatient medical records have been associated with the claims file. The appellant was afforded two VA examinations. The appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed for an increased evaluation, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); 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). The Merits of the Claim The appellant contends that his service-connected right index finger disability is more severe than is contemplated by the currently-assigned rating. He maintains that he has back pain and that the disability interferes with his hand function. He further reports that he needs to take pain medication. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two disability 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. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part which becomes disabled on use must be regarded as seriously disabled. However, a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Pursuant to regulatory provisions, 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 involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Diagnostic Code 5003. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. The 10 and 20 percent evaluations based on x-ray evidence may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The appellant underwent a VA medical examination in June 2005. The examiner noted that the appellant's right hand is his dominant hand. The appellant said that he could not get a full grip with his right hand because his index finger does not flex fully. He reported experiencing pain, as well as occasional numbness. Flare-ups were noted to not be a problem and that they did not cause any additional functional impairment. On physical examination, there was a scar on the palmar surface of the right index finger, as well as one on the dorsal surface of the index finger. The scars were well- healed and did not have any unusual sensitivity. The appellant exhibited 90 degrees of flexion and complete extension in the metacarpal phalangeal (MCP) joint of the right index finger. The proximal interphalangeal (PIP) joint of the right index finger had only 10 to 15 degrees of active flexion. There was some reduction in sensation over the extensor surface of the proximal phalanx. The strength and dexterity of the right index finger were limited and the appellant was able to flex no closer than three inches away from the palmar crease. Review of the appellant's VA outpatient treatment records dated between May 2005 and May 2007 reveals that the appellant complained of right index finger pain in April 2006. A May 2006 functional capacity list indicated that the appellant had no restrictions for grasping or pushing/pulling. In September 2006, the appellant again complained of pain in his right index finger. The appellant underwent another VA medical examination in May 2007; the examiner reviewed the claims file. The appellant reported that his right index finger was generally pain-free, but that he would experience pain after striking the PIP joint against an object. He denied any post-service surgeries, physical therapy or other treatment for the right index finger. The appellant said that he took over-the- counter pain medication for pain associated with flare-up pain; he said that this was beneficial. The appellant complained of decreased grip strength in his right hand, as well as increased pain with use of the hand. On physical examination, the appellant had a five-centimeter laceration/surgical incision scar overlying the ulna dorsum of the PIP joint; this scar was well-healed and nontender without sign of inflammation, infection or depression. There also was a proximal centimeter-sized scar. The PIP joint appeared minimally enlarged and arthritic in appearance. There was six degrees of ulnar drift of the index finger distal to the PIP joint. The distal interphalangeal (DIP) joint appeared to be minimally enlarged and arthritic. Grip strength was 5/5; pinch strength was 5/5. The gap distance between the distal palmar pads of the thumb and index finger was zero centimeters. The gap distance between the index finger distal palmar pad and the median transverse fold of the palm was eight centimeters. The appellant appeared to have normal dexterity. The appellant exhibited zero to 85 degrees of MCP joint flexion on repetitive motion. He exhibited 36 degrees of PIP joint flexion on repetitive motion; this reflected a loss of four degrees. On repetitive motion of the DIP joint, the appellant had 30 degrees of flexion. There was no apparent pain, weakness, fatigability or loss of coordination with repetitive ranges of motion. Radiographic examination revealed mild deformity of the proximal phalanx consistent with remote fracture. The examiner stated that there were no sequelae of the in-service right index finger injury other than six degrees of ulnar drift at the PIP joint. The appellant has been assigned a ten percent evaluation for his right index finger disability for limitation of motion. This has been assigned under Diagnostic Code 5225. In classifying the severity of ankylosis and limitation of motion of single digits and combinations of digits the following rules will be observed: (1) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, with either joint in extension or in full flexion, will be rated as amputation. (2) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, even though each is individually in favorable position, will be rated as unfavorable ankylosis. (3) With only one joint of a digit ankylosed or limited in its motion, the determination will be made on the basis of whether motion is possible to within 2 inches (5.1 cms.) of the median transverse fold of the palm; when so possible, the rating will be for favorable ankylosis, otherwise unfavorable. (4) With the thumb, the carpometacarpal joint is to be regarded as comparable to the metacarpophalangeal joint of other digits. Extremely unfavorable ankylosis of the fingers, all joints in extension or in extreme flexion, or with rotation and angulation of bones, will be rated as amputation. The ratings for codes 5216 through 5219 apply to unfavorable ankylosis or limited motion preventing flexion of tips to within 2 inches (5.1 cms.) of median transverse fold of the palm. Extremely unfavorable ankylosis will be rated as amputation under Diagnostic Codes 5152 through 5156. 38 C.F.R. § 4.71a. When limitation of motion of the index finger is considered, Diagnostic Code 5225 is applicable; the appellant has been assigned a 10 percent evaluation under this code. Under Diagnostic Code 5225, favorable or unfavorable ankylosis of the index finger is evaluated as 10 percent disabling. Under Diagnostic Code 5153, where there is amputation of the index finger through the middle phalanx or at the distal joint, a 10 percent evaluation is warranted, and a 20 percent rating is warranted where an amputation of the index finger occurs at the proximal interphalangeal joint or proximal thereto. The appellant's right index finger disability cannot be considered equivalent to an amputation since he still has the finger and he still has function in all parts of the finger, even if he does have some pain on use. The Board has also considered other applicable Diagnostic Codes. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that the described conditions in that case warranted 10 percent evaluations under three separate diagnostic codes, none of which had a rating criterion the same as another. The Court held that the conditions were to be rated separately under 38 C.F.R. § 4.25, unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. Esteban, at 261. The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id. at 262. Therefore, the Board has considered whether a separate compensable evaluation is warranted for the residual scarring of the appellant's right index finger or for the numbness in the right index finger. Under Diagnostic Code 7802, a 10 percent rating is warranted for: scars, other than head, face, or neck, that are superficial and that do not cause limited motion, area or areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7803, a 10 percent rating is warranted for unstable superficial scars. Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. Under Diagnostic Code 7805, scars may also be rated based on limitation of function of affected part. The notes pertaining to these regulations (re-numbered) are shown below: (1) Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. (2) A deep scar is one associated with underlying soft tissue damage. (3) A superficial scar is one not associated with underlying soft tissue damage. (4) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Here, while there have been complaints of pain in the right index finger, there is no clinical evidence of record to demonstrate that either scar is tender or painful on examination or that any limitation of function is caused by either scar. In addition, the appellant's scars do not cover an area even approaching 144 square inches and there is no clinical evidence of record that the right index finger scars are unstable. Thus, the provisions of these codes and the Note following them, do not provide a basis for the assignment of a separate compensable evaluation. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7803, 7804, 7805. Therefore, none of the Diagnostic Codes discussed above provide a basis for an increased rating for the right index finger disability. The rating schedule does not provide a basis for an increased evaluation for the appellant's right index finger disability given the physical findings in this case and a rating in excess of 10 percent for appellant's service-connected residuals of a right index finger injury is not warranted. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.68, 4.71a, 4.118, 4.124a, Diagnostic Codes 5153, 5225, 7804, 7805. However, in this case, the appellant has complained of some numbness, as well as weakness, in the right hand. VA medical examination has yielded a finding of reduction in sensation on the extensor surface of the index finger. Mild incomplete paralysis, neuritis or neuralgia of the median nerve of the major or minor extremity warrants a 10 percent evaluation. 38 C.F.R. § 4.124, Diagnostic Codes 8515, 8615 and 8715. A 30 percent evaluation is warranted for moderate incomplete paralysis of the median nerve of the major upper extremity. A 50 percent evaluation for the major extremity requires severe incomplete paralysis. 38 C.F.R. § 4.124a, Code 8515. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates impairment of function of a degree substantially less than the type of picture for complete paralysis given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Note. The clinical evidence of record demonstrates the existence of decreased sensation of the right index finger - therefore, a separate 10 percent evaluation is warranted for that disability. However, the Board finds that an evaluation in excess of 10 percent is not warranted under the criteria of Diagnostic Code 8515 for paralysis of the right median nerve. The objective findings of the June 2005 VA examination indicate that the appellant has no more than a mild incomplete paralysis of the median nerve. The appellant demonstrated only a slight decrease in sensation. The appellant is already compensated under Diagnostic Code 5225 for loss of range of motion. As such, more than mild incomplete paralysis of the median nerve is not demonstrated in light of the appellant's complaints and the clinical findings of record. Therefore, the clinical evidence of record supports the assignment of a 10 percent evaluation, but not more, for the wholly sensory disability of the right index finger. In arriving at the above conclusions, the Board has considered the history of the veteran's disability, as well as the current clinical manifestations and the effect this disability may have on the earning capacity of the veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). The nature of the original disability has been reviewed, as well as the functional impairment that can be attributed to pain and weakness. Nevertheless, the Board has found that an increased rating, based on the considerations of the Deluca case, is not appropriate. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7. The Board also concludes that the evidence of 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). In the present case, the Board notes that there is no contention or evidence submitted that the disorder is so unusual as to render application of the regular schedular provisions impractical, warranting application of 38 C.F.R. § 3.321. In addition, there has been no showing that the appellant's residuals of surgical repair of an injury to the right index finger have necessitated any periods of hospitalization. In the absence of such factors, the Board finds that the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Floyd v. Brown, 9 Vet. App. 88 (1996). In addition, based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. The Board has not found any variation in the appellant's symptomatology or clinical findings that would warrant the assignment of any staged ratings in this case. ORDER An evaluation in excess of 10 percent for the orthopedic and scarring residuals of the right index finger injury is denied. Entitlement to a separate 10 percent disability rating for the right index finger neurologic disability is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs