Citation Nr: 0913236 Decision Date: 04/09/09 Archive Date: 04/21/09 DOCKET NO. 07-15 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for status post distal partial amputation of the right index finger. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1942 to March 1946 and from July 1949 to February 1950. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claim for an increased rating. FINDINGS OF FACT 1. The Veteran's right index finger is amputated through the mid-portion of the distal phalanx, with a vestigial nailbed and preservation of the distal interphalangeal (DIP) joint and the proximal interphalangeal (PIP) joint. 2. The Veteran experiences difficulty in performing some daily tasks (such as writing legibly) due to impaired fine motor manipulation and poor pinch strength. 3. The Veteran complains of frequent pain unrelieved by over-the-counter pain killers, severe pain during cold months, and interrupted sleep due to pain. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for status post distal partial amputation of the right index finger have not been met. 38 U.S.C.A. § 1157, 5107 (West 2002); 38 C.F.R. §§ 3.102, (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (38 C.F.R., Part 4), which represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Generally, an evaluation of the extent of impairment requires consideration of the whole recorded history (38 C.F.R. §§ 4.1, 4.2), but when, as here, service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). And the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Here, since the Veteran has been assigned the highest rating possible for the entire rating period, staged ratings are not warranted. The Veteran's service-connected right index finger disability is currently assigned a 10 percent rating under Diagnostic Code 5153. 38 C.F.R. § 4.71a (rating criteria for amputations of the upper extremity). He asks for a higher rating due to the functional loss he experiences as a result of pain as well as a result of the amputation of a finger of his dominant hand. He believes that a 10 percent rating does not adequately compensate him for his disability and he asks that he be given the benefit of the doubt in evaluating his disability. The criteria for rating amputations of the index finger are set forth in Diagnostic Code 5153. With respect to the dominant hand, amputation through the middle phalanx or at the distal joint warrants a 10 percent disability rating; amputation at the proximal interphalangeal joint or proximal thereto without metacarpal resection warrants a 20 percent rating; amputation with metacarpal resection (more than one- half the bone lost) warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5153. While evaluations higher than the 10 percent rating assigned to the Veteran's disability are available under the diagnostic code, those ratings require more amputation of the index finger than is shown in this case. Here, the Veteran's amputation is limited to the distal phalanx. Thus, under the schedular criteria, a rating higher than 10 percent is not available. The Veteran's representative asks that all relevant diagnostic codes be examined in order to provide the Veteran with a higher rating. But under the "amputation rule," the combined ratings for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Thus, even if other aspects of his right index finger could be rated separately under criteria found in other diagnostic codes, the amputation rule would preclude a rating higher than 10 percent. As a result, the Veteran has been assigned the maximum rating available for his disability. The Veteran asks the Board to consider his functional limitations due to the loss of his finger tip and the pain he experiences. A disability of the musculoskeletal system is primarily the inability, due to damage, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Thus, functional loss due to pain and weakness must be considered in evaluating the disability because a part which becomes painful on use must be regarded as seriously disabled. Id. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (disability ratings should reflect the veteran's functional loss due to fatigability, incoordination, endurance, weakness, and pain). And the rating should reflect the condition of the veteran during flare-ups. DeLuca v. Brown, supra. The Board is aware of the evidence of functional loss on the record. The August 2008 VA compensation and pension (C&P) examiner noted that the Veteran has difficulty in picking up fine objects, such as coins or paper clips, and also has difficulty in fine motor manipulation due to the shortening of his finger and the decreased sensation at the tip of his finger. The Veteran especially has lost pinch strength and he complains that he has trouble holding things. The Veteran experiences pain in his finger that at times wakes him up at night. That pain is no longer relieved by over-the-counter pain killers. And during cold months, the pain is severe. But when the maximum schedular rating has already been assigned to a disability, the law provides that no additional higher rating is available for functional loss due to pain. Johnston v. Brown, 10 Vet. App. 80 (1997). Since the Veteran has been assigned the maximum schedular rating, no further increase for functional loss is warranted. As for the Veteran's request that he be given the benefit of the doubt, when there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, there is clearly credible evidence that the Veteran experiences functional loss due to his disability. But a higher schedular rating is precluded as a matter of law because the amputation rule provides for a maximum rating to be assigned and the Veteran's disability has already been assigned that maximum rating. Thus, there is no reasonable doubt to resolve. Nor is a higher rating available under the criteria for an extraschedular rating. 38 C.F.R. § 3.321(b). When a case involves whether extraschedular consideration is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the rating schedule provides for levels of ratings dependent upon how much of the finger was amputated. Since the Veteran's disability can be measured in that way, the schedular criteria are adequate for evaluating his disability. As for the Veteran's complaints of functional limitations and pain, those symptoms are also adequately provided for in the criteria of 38 C.F.R. § 4.40. He merely is precluded from an increased rating by the terms of the amputation rule. And even the amputation rule shows that the schedular criteria are adequate for rating the Veteran's disability because it was designed to cap a disability rating where multiple symptoms would result in a rating higher than that provided for amputation. In any event, the difficulty in picking up fine objects and in using fine motor skills, and the Veteran's pain-while understandably frustrating for the Veteran-are not extraordinary symptoms with respect to the amputation of a finger tip of the dominant hand. 38 C.F.R. § 3.321(b) (governing compensation in exceptional cases). Since the veteran's disability picture was adequately contemplated by the rating schedule, no referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating is warranted. Thun, 22 Vet. App. at 118 (once the Board determined that the claimant's disability picture was not characterized as an unusual one, it did not err in concluding that he was not entitled to referral for an extraschedular rating). Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159. VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Even more detailed information about how ratings are assigned and what evidence would be helpful in evaluating a disability are required when a Veteran files a claim for an increased rating. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's May 2006 letter describing the evidence needed to support the veteran's claim was timely mailed before the August 2006 rating decision. It described the evidence necessary to substantiate an increased rating claim, identified what evidence VA was collecting, requested the veteran to send in particular documents and information, and identified what evidence might be helpful in establishing his claim. The letter did not inform the Veteran that evidence of the impact of his disability on his daily life would be used in evaluating his disability. Although the veteran has not raised any notice issues, the failure to provide complete, timely notice to the veteran raises a presumption of prejudice, so that VA has the burden to establish that the veteran was not, in fact, prejudiced by the inadequate notice. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran was not prejudiced by the flaw in the August 2006 letter because while VA did not notify him to do so, he nevertheless submitted credible evidence of the impact of his disability on his daily life. See Overton v. Nicholson, 20 Vet. App. 427, 439-444 (2006) (failure to provide timely notice is harmless if the claimant had a meaningful opportunity to participate in the processing of the claim). In any event, since a higher rating was precluded as a matter of law, the quality of the notice would have no effect on the outcome of the claim. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any treatment for his finger. VA met its duty to assist by retrieving his claims folder and by providing a C&P examination. ORDER A disability in excess of 10 percent for status post distal partial amputation of the right index finger is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs