Citation Nr: 1012003 Decision Date: 03/31/10 Archive Date: 04/07/10 DOCKET NO. 08-21 857 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE Entitlement to a compensable disability evaluation for traumatic amputation of the distal phalanx of the right little finger. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from January 1951 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the VARO in St. Paul, Minnesota, that confirmed and continued a noncompensable disability evaluation for the Veteran's traumatic amputation involving the distal phalanx of the right little finger. FINDING OF FACT A traumatic amputation of the distal phalanx of the right (the Veteran is right handed) fifth finger is manifested by a tender and painful stump without motion restriction or amputation at the proximal interphalangeal joint proximal thereto. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but not more, for the Veteran's traumatic amputation involving the distal phalanx of the right little finger have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, 4.118, Diagnostic Codes 5156, 7804 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2009). A review of the evidence of record reveals there has been essential compliance with the mandates of the VCAA throughout the course of the appeal. Letters to the Veteran dated in October 2007 and May 2008 informed him of what was necessary to substantiate his current claim, what information and evidence he had to submit, and what information and evidence would be obtained by VA. In Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) it was held that notice specific to individual veterans was no longer required in increased compensation claims. The letter to the Veteran in May 2008 went further, providing him with the rating criteria for single finger amputations. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). In view of the foregoing, the Board finds that the Veteran was notified and made aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist the Veteran in development of his claim has been satisfied. The Veteran has had the opportunity to present evidence and argument in support of his claim. In a June 2008 statement he indicated that he enclosed all remaining information or evidence that would support his claim and he had no other information or evidence to give VA to support his claim. He asked that the claim be decided as soon as possible. Further, in a Report of Contact dated in November 2008, he called to say that a decision should be able to be made based on the medical evidence already of record. This came after he was scheduled for a rating examination in August 2008, but was unable to make it. He was going to be rescheduled, but called to ask that a decision be made based on the evidence of record. Review of the record reveals that the Veteran was accorded a rating examination with regard to the amputation in October 2007. Report of the examination is of record and has been reviewed. The Board finds that the examination is adequate for resolution of the case at this time. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. Pertinent Law and Regulations Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: Interpreting reports of examinations in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiries must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Factual Background and Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 38 C.F.R. § 4.31 provides that in every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2009). The Veteran's amputation of the distal phalanx for the right little finger has been rated under Diagnostic Code 5156. That code provides a minimum 10 percent rating when there has been amputation of the little finger of either hand with metacarpal resection or without resection at the proximal interphalangeal joint or proximal thereto. In the alternative, the Board notes that Diagnostic Code 5230 mandates noncompensable evaluation either when there is limitation of motion of the ring or little finger of either hand. 38 C.F.R. § 4.71a, Code 5230. The Board notes that in the alternative, a 10 percent rating is assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804, based upon a tender and painful scar. This code provides a maximum rating of 10 percent, as do the other potentially applicable Diagnostic Codes 7802 to 7803. There is also no evidence of a deep scar so as to warrant consideration of Diagnostic Code 7801. Diagnostic Code 7805 provides for evaluation based upon limitation of motion, but as already stated, Diagnostic Code 5230 does not provide for even a compensable evaluation for limitation of motion. Also, it does not affect the head, face, or neck so as to warrant consideration of Diagnostic Code 7800. Finally, it is not manifested by dermatitis or eczema so as to warrant consideration of Diagnostic Code 7806. The pertinent evidence of record includes the report of a rating examination accorded the Veteran by VA in October 2007. The Veteran stated the end of the right fifth finger had bothered him over the years. He stated the finger felt stiff. He related that when typing on his computer, it was hard to reach the keys because the little finger was shorter. He reported pain and flareups every other day of the winter and once a week during the rest of the year. The pain was described as moderate in degree and would last about 10 to 15 minutes at a time. He did not use any medication or treatment for the pain. Functionally, he stated he could do things, "but it would hurt more when he does them." There was no change in range of motion, and no indication of weakness or fatigue, but he stated that the finger felt more "uncoordinated." As for daily living, he was able to housework and yard work. There were no other limits except as described above secondary to the finger. He was currently retired. It was noted he was right-handed. The right fifth digit was observed to be absent the distal phalanx. The skin of the middle phalanx was described as well healed. There was mild tenderness to palpation of the stump as well as the middle phalanx. The metacarpophalangeal joint exhibited flexion to 90 degrees. The proximal interphalangeal joint exhibited flexion to 110 degrees. There was no distal interphalangeal joint. He extended around 0 degrees for the metacarpophalangeal joint and about 3 degrees for the proximal interphalangeal joint. The Veteran exhibited no pain with range of motion. Repetitive motion did not change his symptoms. He was able to oppose the thumb to all the fingers. The tips of the fingers all reached the proximal crease except for the fifth digit that was about .5 centimeters away from the crease. Group strength was normal, as was dexterity. Strength in the digit was normal and there was no indication of deformity, swelling, erythema, or numbness. The examiner stated that except as noted in the history and examination, there was no change in active or passive range of motion during repeat motion testing. There were no additional losses of ranges of motion in the involved joint due to pain, weakness, impaired endurance, fatigue, incoordination, or flareups. The examination diagnosis was traumatic amputation of the distal phalanx of the right fifth finger. In view of the foregoing, the Board notes that there is no showing of ankylosis. Even if there were ankylosis, under Code 5230, Code 5227 mandates a noncompensable evaluation for favorable or unfavorable ankylosis of the ring or little finger. As noted above, the October 2007 examination did not show any motion restriction of the right fifth finger. Further, strength was described as normal, and there was no indication of deformity, swelling, or erythema. However, the Board finds that with regard to the complaint of pain and tenderness involving the stump, this may be rated by analogy to scarring. As indicated above, under Code 7804, a 10 percent rating is warranted for 1 or 2 scars that are painful and tender. Thus, the Board finds that a disability rating of 10 percent is warranted for the Veteran's service- connected disability involving the right fifth finger. The Board refers to Note 2 under Diagnostic Code 7804 that provides that a 10 percent evaluation will be assigned for a scar on the tip of a finger even though amputation of the part would not warrant a compensable evaluation. In sum, the Board concludes that the disability involving the right little finger has been 10 percent disabling throughout the period on appeal. Therefore, there is no basis for staged ratings pursuant to Hart (noted above). The Board has considered whether the case should be referred to the Director of the VA Compensation & Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). The record reflects the Veteran has not required frequent hospitalizations for the disability and the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment for the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. ORDER A 10 percent rating, but not more, for the Veteran's traumatic amputation of the distal phalanx of the right fifth finger is granted. To this extent, the appeal is allowed. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs