Citation Nr: 1037124 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 07-28 038A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 10 percent for residual of laceration, left thumb. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from June 1961 to June 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2006 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied an increased evaluation for residuals of left thumb laceration and which denied service connection for PTSD. In June 2010 the Veteran testified before the undersigned at a travel Board hearing at the RO. The Veteran submitted additional evidence with a waiver of RO review. A transcript has been incorporated into the record. In consideration of a recent Court decision, the Board has recharacterized the Veteran's psychiatric claim, as is now stated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left thumb disability is manifested by pain and subjective reports of weakness in the left thumb, with limitation of interphalangeal joint flexion to 0 degrees and flexion to 70 degrees, but not by limitation of finger motion and no findings of ankylosis of the left thumb. 2. The Veteran has a well-healed scar on his left thumb that does not limit motion of the left thumb. 3. The Veteran's left thumb disability does not cause marked interference with employment or necessitate frequent hospitalization beyond what is contemplated by the regular schedular standards. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of laceration, left thumb, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5224, 5228, 7805 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In the present case, VA provided the Veteran with the contemplated notice in May 2006. The May 2006 correspondence also provided notice as to the disability rating and effective date that may be assigned. To the extent the Veteran received any notice in an untimely manner, such a timing deficiency was cured by the multiple supplemental statements of the case issued, the last one in March 2010. See Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007) (a supplemental statement of the case can serve as a means of readjudication following 38 U.S.C.A. § 5103(a)-compliant notice; where such notice is followed by a readjudication, any timing error is cured). The Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the veteran that, to substantiate a claim, he or she must provide, or ask VA 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. The Court also held that where the claimant is rated under a diagnostic code that 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, the notice letter must provide at least general notice of that requirement. The Board points out that the U.S. Court of Appeals for the Federal Circuit recently reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Reviewing the above correspondences in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a)-compliant notice as to his increased rating claim in November 2008. With respect to VA's duty to assist the Veteran, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, were obtained by the RO or provided by the Veteran himself. 38 U.S.C.A. § 5103A. In this regard, the Veteran has stated to both VA examiners that he has not received current treatment for his left thumb disability; therefore, there were no treatment records to obtain. The record reflects that the Veteran was examined in connection with his increased rating claim. The representative does not challenge the adequacy of the two VA examinations, and the Board finds that those examination reports are adequate for the purpose of accurately evaluating the service-connected disability. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected left thumb disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2009). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that consideration of staged ratings was appropriate in claims for an increased rating when the facts reflect distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart, 21 Vet. App. at 509-10. Historically, service connection for residuals, laceration, left thumb, disability was granted in a November 1981 rating decision. The disability was evaluated as 10 percent disabling. This evaluation has remained in effect since that time. On file are some private treatment records that include treatment for other disorders. The Veteran reported to VA examiners that he has not received treatment for his left thumb disability. In August 2006 the Veteran was afforded a hand, thumb, and fingers examination. The Veteran reported experiencing intermittent pain in his left thumb, with stiffness and weakness. He described the pain as mild to moderate. He also stated he was right-handed. The examiner noted no amputations and a scar on the distal aspect of the thumb that was nontender, smooth, and causing no limitation of function. The Veteran was able to oppose 2nd, 3rd, 4th, and 5th fingers with his left thumb, but was mildly slow due to stiffness and pain. Dexterity of the left hand was poor. The Veteran was observed having difficulty buttoning his shirt button. Motor function of the left thumb was 3/5. His dexterity was poor in regards to grasping objects. An x-ray study of the left thumb was normal. The Veteran informed the examiner for the January 2009 hand, thumb, and finger examination that he had no current treatment for his left thumb. The Veteran reported his left thumb did not allow him to pick up any object that is the least bit heavy as he could not flex his thumb. He also had difficulty driving a car without power steering because of the weak grip strength of the left hand. The objective examination revealed the Veteran had 0 degrees flexion and was unable to flex his interphalangeal joint. Flexion of his first metaharpophalangeal joint was measured 0 to 70 degrees. With 3 repetitions the range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance. The Veteran was able to oppose his thumb to his index, long, ring, and little fingers both to the finger tufts and the pads. The examiner observed no gaps between the tips of the thumb and the fingers, between the thumb pad and the fingers or between the tips of the fingers and the proximal transverse crease of the palm. The examiner measured his grip strength as 5/5 bilaterally. At his June 2010 hearing before the undersigned, the Veteran testified about the stiffness and weakness in the thumb, his difficulty in clasping with the thumb and how it affects how he holds the bat when he plays baseball. Potentially applicable in rating limitation of the left thumb is 38 C.F.R. § 4.71a, Diagnostic Code 5228. Under that Diagnostic Code, a 10 percent rating is warranted for limitation of motion of the thumb, when there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is warranted for limitation of motion of the thumb, when there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Diagnostic Code 5224 sets out the criteria for evaluating ankylosis of the thumb. Under Diagnostic Code 5224, a 10 percent rating evaluation is warranted for favorable ankylosis and a 20 percent rating evaluation is warranted for unfavorable ankylosis. There is no differentiation between the ratings assigned for the major and minor hands under this code. 38 C.F.R. § 4.71a, Diagnostic Code 5224 (2009). In the Veteran's case, there is no finding of ankylosis of the thumb. Therefore, this diagnostic code is inapplicable. Scars may be evaluated on the basis of any associated limitation of function of the affected body part. 38 C.F.R. § 4.118, Diagnostic Code 7805. While Diagnostic Code 7805 allows for the rating of scars based on limitation of motion, the evidence does not establish that the Veteran experiences limited motion of the left thumb due to the scar on the distal aspect of the thumb. The Board notes that the examiner at the August 2006 examination specifically found that the scar is well-healed with no skin breakdown or ulceration and that the scar caused no limitation for function. Therefore, this diagnostic code also does not allow for a higher rating or a separate rating for the scarring. Thus, a schedular rating higher than the currently assigned 10 percent is not warranted In determining the adequacy of assigned disability ratings, consideration must be given to factors affecting functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the Veteran's ordinary activity. 38 C.F.R. § 4.10, 4.45. The Board acknowledges the Veteran's contentions regarding the severity of his left thumb disability. Because a layperson is competent to establish the presence of observable symptomatology, the Board finds the Veteran competent to state that he has recurrent pain, stiffness, and an inability to use his thumb to carry anything of weight using his left thumb. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board must determine if his assertions are credible in order to assign appropriate weight to his statements. The Veteran has repeatedly stated that his thumb is stiff and weak and indeed the VA examiners found 0 degrees flexion with regard to one joint of the thumb; however, he was able to touch the tip of his thumb to opposing fingers, albeit in 2006 the examiner observed he could do this motion slowly. As the Veteran is now retired, he has not claimed to be affected at his workplace; however during his testimony he described difficulty and inconvenience while at bat in a baseball game. Therefore, while the Board has no cause to question the Veteran's report of weakness in the thumb, the Board finds his symptoms to be appropriately evaluated at a 10 percent rating. A 10 percent evaluation is warranted for limitation of thumb motion with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Board notes that the Veteran had 0 degrees flexion in one joint of his thumb, the interphalangeal joint. The examiner observed no gaps between the left thumb and the opposing fingers. None of his fingers has at least a one-inch gap between the fingertip and the proximal transverse crease of the palm. Although the Veteran did report pain and weakness, the examiner measured 5/5 grip strength of the hand. Given his measured flexion and full grip strength, the Board finds that even when functional loss due to pain and weakness are considered, see DeLuca v. Brown, 8 Vet. App. 202 (1995), a separate compensable rating under Diagnostic Code 5228 is not warranted. The Board also points out that no neurologic disorder has been identified in the left hand. In short, the evidence does not support assignment of an evaluation in excess of 10 percent for the service-connected residuals, laceration, left thumb. 38 C.F.R. § 4.3. The Board has considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities are inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disabilities with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds 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" with respect to the disorder at issue. The record indicates the Veteran has already retired, and so the Veteran has not contended that that he could not work because of his left thumb disability. Although the left thumb disability does impact some of his activities of daily living, for example, the 2006 examiner did observe that the Veteran buttoned his shirt with his left hand and thumb slowly, the Board points out, the Veteran's description of the thumb notwithstanding, that on objective testing he does retain a substantial range of motion and strength in the left hand. In short, the Board finds that the persuasive evidence does not demonstrate marked interference of the service- connected disorder with employment. In addition, there is no evidence that his service-connected disorder has necessitated frequent periods of hospitalization or that the manifestations of the disability are unusual or exceptional. Indeed, the Veteran has reported that he has not sought treatment for his thumb. Therefore, the Board finds that the criteria for submission for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board lastly has considered whether an increased rating is warranted for any discrete period during this appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed the evidence on file, particularly the VA examination reports which document findings clearly consistent with no more than a 10 percent evaluation, and concludes that the underlying level of severity for the Veteran's service-connected left thumb has remained at the 10 percent level during the period from the filing of the claim for an increased rating. ORDER Entitlement to a rating in excess of 10 percent for residuals, laceration, left thumb, is denied REMAND While the Board regrets the additional delay, more development is required for the acquired psychiatric disorder claim. The Board observes that the June 2010 hearing included extensive testimony regarding the question whether the Veteran served within the territorial bounds of the Republic of Vietnam. After a review of the entire claims file, the Board observes that his PTSD claim was denied by the RO in part because his stressor events had not been confirmed and in part because his physical presence in the Republic of Vietnam had not been found. The Board has reviewed the award parameters for the Republic of Vietnam Campaign Medal and for the Vietnam Service Medal, as provided by the U.S. Air Force Personnel Center, Randolph Air Force Base library website. Both medals could be awarded to personnel who served in the Republic of Vietnam or outside the geographic limits of South Vietnam and who provided direct combat support to the RVN Armed Forces, which would include service in Thailand. Therefore, the fact that the Veteran has been awarded these medals, in and of itself, appears to neither weigh for or against the question of whether the Veteran physically entered the territorial bounds of the Republic of Vietnam. The Board also observes that the Veteran's personnel records, as contained in the record, show that he served in Thailand, from September 1965 to September 1966. However, in December 2007 the Veteran submitted two stressor statements (VA Forms 21-0781), which dated his assignment to the 388th Tactical Fighter Wing as December 1967 to September 1967 and which dated a particular event as occurring in February 1967 (witnessed the dead body of "Lt. Penny"). Accordingly, the RO researched to find service personnel who died in 1967 with the last name of "Penny." The RO found only the name of a Marine corporal. The Board finds that additional development is needed to determine whether any record can be found of a "Lt Penny", an Air Force weapons officer who may have died between September 1965 and September 1966. If such a stressor is confirmed, then the Veteran may be afforded a VA PTSD examination. The Board has reviewed the Veteran's treatment records from the Vet Center, dated from October 2007 to December 2007. Admittedly, they are poor copies of handwritten notes; however, the Veteran was diagnosed with both PTSD and "MDD" (major depressive disorder). Within the treatment notes, the Veteran reported various events and memories from his service years, to include being housed in a barracks across from a morgue to what appears to be events at McGuire AFB related to the Jonestown Massacre, which troubled him. The Board finds that the Veteran should be afforded a VA mental disorders examination to determine whether he suffered from an acquired psychiatric disorder other than PTSD and to determine whether such an acquired psychiatric disorder is etiologically related to his service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As well, within the Vet Center treatment notes are references to the Veteran seeking an appointment with a psychiatrist at the VA medical center. The notes are unclear as to whether he actually did have an evaluation or any mental health/psychiatric evaluation at another VA medical facility. The AMC/AOJ should determine whether there are any such VA treatment records and include them into the claims file. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record all mental health or psychiatric records for the Veteran from the VA Philadelphia, PA medical facility from October 2007 to the present. Document for the record any negative findings. 2. Contact the appropriate agency to determine whether any record can be found of the death of a "Lt Penny", an U.S. Air Force weapons officer in an airplane in southeast Asia between September 1965 and September 1966. 3. Then arrange for a VA psychiatric examination of the Veteran to determine the nature and etiology of any current psychiatric disorders. All indicated studies, tests and evaluations deemed necessary should be performed. The examiner should report a multi-axial diagnosis, identifying all current psychiatric disorders. A diagnosis of PTSD under DSM IV criteria should be made or definitively ruled out. If PTSD is diagnosed, the examiner should identify the specific stressor(s) supporting the diagnosis. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. With respect to any psychiatric disorder other than PTSD identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder is etiologically related to service. The rationale for all opinions expressed should be explained. The claims file must be made available to the psychiatrist for proper review of the medical history. 4. The RO should then readjudicate the issue remaining on appeal. If the benefit sought on appeal is not granted in full, the RO must issue a supplemental statement of the case, and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2009). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs