Citation Nr: 1028811 Decision Date: 08/02/10 Archive Date: 08/16/10 DOCKET NO. 08-30 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 10 percent for amputation, distal interphalangeal joint, right index finger. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.M.R. Mandel, Law Clerk INTRODUCTION The Veteran served on active duty from February 1970 to June 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The Veteran's service-connected amputation, distal interphalangeal joint, right index finger is manifested by amputation of the right index finger at the distal joint during the entire period on appeal. 2. The Veteran's traumatic amputation is manifested by a limitation of motion preventing the index finger from reaching within 1 inch of the proximal transverse crease of the palm from October 17, 2009. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected amputation, distal interphalangeal joint, right index finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5153 (2009). 2. The criteria for entitlement to a separate 10 percent rating for limitation of motion of the right index finger caused by degenerative arthritis, which is related to the Veteran's service-connected traumatic amputation, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5229 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009). The elements of proper notice include informing 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 and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (2009). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this case, the Veteran was notified of the respective duties of the claimant and of VA, and of the evidence needed to substantiate his claims for increased rating by a letter in July 2006. In this letter, the Veteran was given the specific notice required by Dingess, supra. This was followed by adjudication by rating decision in November 2006. The Board finds that the Veteran is not prejudiced by the manner or timing of VCAA notice in this case. He was given the diagnostic codes and rating criteria for disabilities in the rating decision, statement of the case, and supplemental statements of the case. This notification shows that that a reasonable person could be expected to understand what was needed to substantiate the claims. Although the Veteran was not provided information on the rating criteria for Diagnostic Code 5229, the Board's favorable finding in this regard shows that the Veteran was not prejudiced. Further, the Veteran has been represented by a Veteran's Service Organization during this appeal process and has had a meaningful opportunity to assist in development of his claim. Thus, the Veteran was accordingly made well aware of the requirements for increased evaluations pursuant to the applicable diagnostic criteria. The Veteran described how the disabilities impacted his daily activities in his various VA examinations and in submissions to VA. Consequently, it is also demonstrated that he had actual knowledge of the specific rating criteria for the disabilities, and why higher ratings had not been assigned, as well as an opportunity to present evidence and argument to support a higher rating. The Board also concludes that VA has met its duty to assist the Veteran in developing the evidence to support his claim. The record contains the service treatment records and VA medical records. The Veteran was given VA medical examinations in connection with the claim. Statements from the Veteran and his representatives are associated with the claims file. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there are any available additional pertinent records to support the claim. The Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). History and Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 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 history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. Ap.. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 506 (2007). The Veteran's service-connected amputation, distal interphalangeal joint, right finger is currently rated at 10 percent disabling under the provisions of Diagnostic Code 5153. Under this regulatory provision, a rating of 10 percent is warranted for amputation of an index finger through the middle phalanx or at the distal joint. A 20 percent rating is warranted for amputation of the index finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto; or for metacarpal resection (more than half the bone lost) for the minor joint. A maximum rating of 30 percent is warranted for amputation of the index finger with metacarpal resection (more than one-half the bone lost) of the major joint. At a September 2006 VA examination, the Veteran complained about increasing persistent pain in his finger over the past 6 months. He reported that he experienced some soreness, aching and pain, and that repetitive use, gripping and grabbing made the pain worse. During this examination, the examiner noted that the Veteran had a traumatic amputation of the right distal index finger at the distal interphalangeal joint. X-rays of the right hand confirmed amputation distal to the middle phalange of the second digit. Upon examination, the Veteran showed no decreased range of motion, and the Veteran was able to touch the tip of his index finger to the palm. The examiner also reported that the disability did not interfere with the Veteran's job or daily activities. X-rays taken at the 2006 VA examination also demonstrated the existence of minimal arthritis in the right index finger. The VA examiner opined that the arthritis was related to the traumatic amputation. The Veteran had another VA examination in October 2009. At this examination, the Veteran reported decreased strength and dexterity, pain that worsens in cold weather and difficulty with activities such as unscrewing caps, writing, pulling the trigger of a gun, tying shoes, buttoning clothes, and threading a fishing hook. The Veteran also reported that pain worsened with repetition and denied any flare-ups of the condition. The examiner noted that the Veteran could do normal routine daily activities and that he was retired. Upon physical examination, the examiner noticed tenderness at the stump, and reported full range of motion with the exception that the Veteran was unable to bring the tip of his finger closer than two inches from the crease of the palm. The medical evidence as a whole shows that the amputation is in the area of the distal interphalangeal joint, or distal joint. Under the regulatory rating criteria, a rating of 10 percent is warranted. The next higher rating would require the amputation to be at the proximal interphalangeal joint or proximal thereto. Arthritis is rated under Diagnostic Code 5003. In order for arthritis to be compensable under 5003, it must affect two or more joint groups. Since the arthritis is found only at the amputated region, the Veteran is not entitled to additional compensation for arthritis under this diagnostic code. The Veteran is, however, entitled to additional ratings for the limitation of motion of the right index finger, which was recorded by the October 2009 examiner. Consistent with Hart, supra, the Veteran is entitled to a staged rating, because limitation of motion existed during the October 2009 VA examination, but not the September 2006 VA examination. Under Diagnostic Code 5229, a 10 percent evaluation is appropriate when the limitation of motion causes 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. Since the October 2009 VA examiner reported that the Veteran was unable to bring the tip of his finger within 2 inches of the crease of the palm, he is entitled to a 10 percent rating under Diagnostic Code 5229 beginning October 17, 2009. See 38 C.F.R. § 3.400(b)(2)(i) (2009). The Board notes that 38 C.F.R. §§ 4.40 and 4.45 (2009) and the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), require consideration of the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain. In evaluating the Veteran's right index finger amputation under the criteria of DeLuca, supra, the Board notes that the Veteran specifically denied having flare-ups of pain at the VA examination conducted in October 2009. Nevertheless, the October 2009 VA examiner noted that the Veteran reported additional weakness and pain upon repetition of movement. The October 2009 VA examiner did not, however, find any pain upon repetition of motion and did not note any additional functional loss due to repetitive motion on physical examination. The Board also notes that the Veteran was not prejudiced because, as noted above, the 10 percent rating newly assigned under Diagnostic Code 5229 contemplates the Veteran's pain and limited motion in his right index finger. Ten percent is the highest possible rating under Diagnostic Code 5299. Therefore, an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). Extra-Schedular Rating Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected disabilities. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disabilities are specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the 'governing norms' such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1) (2009). With respect to frequent hospitalizations, the evidence does not reflect that the Veteran has been hospitalized due to his service-connected amputation, distal interphalangeal joint, right index finger. Additionally, there is no evidence that the Veteran's service-connected disability markedly interferes with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). There is also no evidence in the medical records of an exceptional or unusual clinical picture, or of any other reason why an extra-schedular rating should be assigned. In short, the evidence does not support the proposition that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) (2009). ORDER Entitlement to an evaluation in excess of 10 percent for amputation, distal interphalangeal joint, right index finger is denied. Entitlement to a 10 percent rating for limitation of motion is granted, effective October 17, 2009. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs