Citation Nr: 1108763 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 07-18 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for squamous cell carcinoma of the second digit of the right hand, to include as secondary to service-connected gunshot wound residuals of the right index finger. 2. Entitlement to a disability evaluation in excess of 10 percent for the residuals of a gunshot wound of the right index finger. 3. Entitlement to a disability evaluation in excess of 10 percent for a gunshot wound scar of the right index finger. 4. Entitlement to a disability evaluation in excess of 10 percent for the residuals of a gunshot wound of the left index finger. 5. Entitlement to a disability evaluation in excess of 10 percent for a gunshot wound scar of the left index finger. 6. Entitlement to a compensable disability evaluation for the residuals of a gunshot wound of the right middle finger. 7. Entitlement to a disability evaluation in excess of 10 percent for a gunshot wound scar of the right middle finger. 8. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from May 1948 to May 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in Oakland, California. The Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge at the RO in Oakland, California in July 2010. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The issue of entitlement to special monthly compensation based on the need for regular aid and attendance of another person or at the housebound rate has been raised by the record, but it has not been adjudicated by the RO. This issue was previously referred to the RO in the Board's September 2010 remand. However, the record does not reflect that this issue was referred or adjudicated. As such, the Board does not have jurisdiction over this issue, and it is again referred to the RO for appropriate action. The issue of entitlement to TDIU 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 squamous cell carcinoma of the second digit of the right hand did not manifest during, or as a result of, active duty, nor is it secondary to service-connected gunshot wound residuals of that finger. 2. The gunshot wound residuals of the right index finger are manifested by pain and a gap between the index fingers and the proximal transverse crease of the hand on maximal flexion of the fingers of at least 2 inches; it is not manifested by ankylosis. 3. The Veteran's right index finger is well-healed and manifested by pain upon examination; there is no evidence of it being unstable, causing limited motion, or covering an area of 144 square inches or greater. 4. The gunshot wound residuals of the left index finger are manifested by pain and a gap between the index fingers and the proximal transverse crease of the hand on maximal flexion of the fingers of at least 2 inches; it is not manifested by ankylosis. 5. The Veteran's left index finger scar is well-healed and manifested by pain upon examination; there is no evidence of it being unstable, causing limited motion, or covering an area of 144 square inches or greater. 6. The gunshot wound residuals of the right middle finger are manifested by, a gap between the index fingers and the proximal transverse crease of the hand on maximal flexion of 2.5 centimeters, and ankylosis of the proximal interphalangeal (PIP) joint. 7. The Veteran's right middle finger scar is well-healed and manifested by pain upon examination; there is no evidence of it being unstable, causing limited motion, or covering an area of 144 square inches or greater. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for squamous cell carcinoma of the right index finger, to include as secondary to gunshot wound residuals, have not been met. 38 U.S.C.A. §§ 1101, 1130, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 2. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for gunshot wound residuals of the right index finger have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5216-29 (2010). 3. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for scarring of the right index finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801-05 (2010). 4. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for gunshot wound residuals of the left index finger have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5216-29 (2010). 5. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for scarring of the left index finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801-05 (2010). 6. The criteria for establishing entitlement to a 10 percent disability evaluation for gunshot wound residuals of the right middle finger have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5216-29 (2010). 7. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for scarring of the right middle finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801-05 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in May 2006, September 2008, November 2008, April 2009 and September 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See also Goodwin v. Peake, 22 Vet. App. 128 (2008). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Finally, the Board finds there has been substantial compliance with its September 2010 remand directives. The Board notes that the Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the appellant for a medical examination and the appellant attended that examination. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. (CONTINUED ON NEXT PAGE) Service Connection for Squamous Cell Carcinoma Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2010); see also Grivois v. Brown, 6 Vet. App. 136 (1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Facts and Analysis The Veteran contends that he is entitled to service connection for squamous cell carcinoma of the second digit of the right hand. Specifically, the Veteran has indicated that he believes this condition is secondary to his service-connected gunshot wound residuals of the right index finger. However, as outlined below, the preponderance of the evidence of record demonstrates that this condition did not manifest during, or as a result of, active military service, nor is it secondary to a service-connected disability. As such, service connection is not warranted. In October 2007, the Veteran underwent an operation to remove a squamous cell carcinoma from the right index finger. It was noted that the tumor was in a high-risk location, exhibiting indistinct clinical margins. Subsequent treatment records do not reflect that the Veteran's cancer of the right index finger has recurred, or, that it was somehow related to his service-connected gunshot wound residuals. However, the Veteran was seen in January 2008 with complaints of sharp intermittent pain in the finger. The Veteran was noted to have a well-healed scar at this time. The Veteran was afforded a VA examination of the right hand in November 2010. It was noted that the Veteran was diagnosed with squamous cell carcinoma of the right index finger in the past which appeared as a wart and got surgically removed following a biopsy. The examiner concluded that this disability was not related to the Veteran's in-service gunshot wound. The examiner indicated that there is no evidence of relation between squamous cell carcinoma and a previous injury sustained. It was noted that they were different entities and should be looked at differently. The examiner opined that it was a mere coincidence that the Veteran developed squamous cell carcinoma in the same area as a bullet wound. The preponderance of the above evidence demonstrates that the Veteran's squamous cell carcinoma of the right index finger is not secondary to his service-connected gunshot wound. The record contains no medical evidence suggesting any possible association between these two disabilities. Furthermore, the November 2010 VA examiner specifically concluded that they were unrelated, as they should be viewed as two separate entities. The Board recognizes that the Veteran believes his squamous cell carcinoma is secondary to his gunshot wound residuals. In his February 2009 notice of disagreement, the Veteran indicated that it was only logical that his squamous cell carcinoma was a long-term effect of the gunshot wound he sustained in service. However, the record does not suggest that the Veteran is competent to offer a medical opinion as complex as the etiological origins of skin cancer and the Veteran has not provided any evidence in support of his alleged association. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Furthermore, according to the November 2010 VA examiner, these two disabilities were entirely separate from one another and it was only a coincidence that they were in the same location. As such, the Veteran's statements do not demonstrate entitlement to service connection for squamous cell carcinoma of the right index finger. While the Veteran has argued that he is entitled to service connection on a secondary basis, the Board has also considered whether he may be entitled to service connection on a direct basis to afford him all reasonable possibilities of recovery. However, the preponderance of the evidence of record demonstrates that squamous cell carcinoma did not manifest during, or as a result of, active military service. The Veteran's service treatment records are entirely silent regarding skin cancer. In fact, the first evidence of record diagnosing this condition is from 2007, which is approximately 58 years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). Finally, the record contains no medical evidence suggesting any possible connection between the Veteran's squamous cell carcinoma and his active military service. As such, service connection is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for squamous cell carcinoma of the right index finger, to include as secondary to his service-connected gunshot wound residuals, must be denied. Increased Disability Evaluations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Relevant Facts The Veteran was afforded a VA examination of the hands in June 2006. The Veteran reported having pain in both index fingers since the injury, with significantly worse pain over the past 20 years. The Veteran also described pain in the right long finger. He also reported a decrease in strength bilaterally with locking of all three affected fingers. He indicated that he experienced pain with gripping or any kind of activity, in addition to weakness and fatigability with repetitive movements. Examination revealed that the Veteran had mildly impaired sensation in the left index finger, right index finger and right middle finger. On the left, the Veteran was found to have a 2 cm gap from tip of thumb to palm, 3 cm from index to palm, and the middle finger could touch the palm. On the right, the Veteran had a 2 cm gap from the tip of the thumb to the palm, a 4.5 cm gap for the index finger to the palm, and a 2.5 cm gap of the middle finger to the palm. He was able to make a fist and extend all of his fingers. The fingers were also noted to be quite tender to palpation. The Veteran had an osteophytic hypertrophic deformity of the left index finger joint with some noted underlying tissue and muscle loss, and an area of tissue or muscle loss on the palmar aspect of the right middle finger. It was noted that there was no visible scarring. The examiner diagnosed the Veteran as status post gunshot wound to the right and left index fingers with post-traumatic degenerative changes, as well as status post gunshot wound to the right middle finger with age appropriate degenerative changes. X-rays of the right hand were taken in April 2008, revealing an old healed fracture of the second proximal phalanx with deformity, unchanged since 2003. There was also mild generalized degenerative joint disease (DJD), especially at the distal interphalangeal (DIP) joint and the first DIP joint. No destructive processes were identified and there was no fracture, dislocation or osteomyelitis. The Veteran was subsequently seen for an orthopedic surgery consultation in June 2009. The index finger showed some shallow depression on the dorsoradial part of the base of the index finger just proximal to the PIP joint extending to the metacarpal phalangeal (MP) joint. He was noted to have pretty good feeling and sensation in the finger, but the Veteran reported that it sometimes burned. The extensor tendon was normal adjacent to the skin defect and the index finger had very mild ulnar deviation. When he made a fist, the finger was in about 5 degrees of ulnar deviation and the tip of the index finger was about 4 to 5 cm away from the thenar eminences. This was noted to be a permanent deformity and stiffness. Movement of the index joint was smooth and normal range, and flexion of the PIP joint was only 70 degrees. He had full extension there and the DIP joint flexion was about 35 degrees with full extension. The Veteran was diagnosed with a remote fracture status post resection of the squamous cell carcinoma of the index finger, well-healed. A subsequent evaluation from August 2010 revealed pain on joint movement with the right second finger with full range of motion. The Veteran was most recently afforded a VA examination of the hands in November 2010. The Veteran was noted to have decrease in strength and dexterity of both hands. There were also symptoms of pain, limited motion, swelling, deformity, weakness, and stiffness in both index fingers. Examination of the left and right index fingers revealed normal extension with a gap between the index fingers and the proximal transverse crease of the hand on maximal flexion of the fingers that was greater than 2 inches. There was objective evidence of pain upon repetitive motion with no additional loss of motion. Examination of the right long finger revealed limited extension of the proximal interphalangeal (PIP) joint by 10 degrees with no gap between the long finger and the proximal transverse crease of the hand. There was objective evidence of pain upon repetitive motion with no further limitation. The examiner concluded that there was ankylosis of the PIP joint of the left long finger and the right long finger. There was also deformity of the right index finger with concave indentation on the medial side. These disabilities were noted to affect the Veteran's daily life in that he had trouble with activities such as gripping, tying shoes and holding utensils. He also had trouble with handwriting. X-rays revealed stable degenerative joint disease of the hands, most prominent at the left interphalangeal joints of the thumbs bilaterally. There were also stable posttraumatic deformities of the right and left second digits. There were no gross soft tissue deformities or erosions. It was noted that the Veteran retired in 2005 because he was eligible due to age. However, his employability was noted to be limited due to age and limitation in dexterity of the hands. Gunshot Wound Residuals Bilateral Index Fingers The Veteran contends that he is entitled to disability evaluations in excess of 10 percent for his service-connected gunshot wound residuals of the right index finger and left index finger. However, as demonstrated by the above facts, the preponderance of the evidence demonstrates that the Veteran is not entitled to disability evaluations in excess of 10 percent at any time during the pendency of the claim for these disabilities. For historical purposes, the Veteran was originally granted service connection for residuals of a gunshot wound to the right index finger in a June 1949 rating decision. A 20 percent disability evaluation was assigned for the right index finger, and a 10 percent disability evaluation for the left index finger, under Diagnostic Code 5225, effective as of May 14, 1949. The Veteran's right index finger evaluation was subsequently decreased to 10 percent in a May 1961 rating decision. VA received the Veteran's most recent claim seeking increased disability evaluations in May 2006. These claims were denied by the RO in August 2006, who maintained the 10 percent disability ratings but changed the applicable Diagnostic Code to 5229. The Veteran submitted a timely notice of disagreement to this denial in October 2006 and he subsequently appealed this decision to the Board in June 2007. Under Diagnostic Code 5229, a 10 percent disability evaluation is warranted when there is limitation of motion of the index or long finger with a gap of one inch (2.5 centimeters (cm)) 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. 38 C.F.R. § 4.71a. This is the maximum disability evaluation available under this Diagnostic Code. According to the Veteran's June 2006 VA examination, the Veteran had a 4.5 cm gap from the right index finger to the palm with full extension. The Veteran had a 3 cm gap from the left index finger to the palm with full extension. Upon examination in November 2010, the Veteran was found to have normal extension of both index fingers with a gap between the index fingers and the proximal transverse crease of the hand on maximal flexion of the fingers that was greater than 2 inches. Therefore, the evidence demonstrates that the Veteran has been entitled to the maximum 10 percent disability evaluation under Diagnostic Code 5229 throughout the pendency of his claim. See id. However, there are no additional Diagnostic Codes that would allow for a disability evaluation in excess of 10 percent for either index finger, as there is no evidence of ankylosis of more than one digit. See 38 C.F.R. § 4.71a, Diagnostic Codes 5220-23. The Board recognizes that the Veteran has testified to pain, limited motion and impaired functionality. However, a 10 percent disability evaluation is meant to compensate a Veteran with such a degree of impairment. In fact, under Diagnostic Code 5225, complete ankylosis of either index finger still only warrants a 10 percent disability evaluation. As such, even when taking the Veteran's testimony of pain and functional impairment into consideration, the preponderance of the evidence of record does not demonstrate entitlement to disability evaluations in excess of 10 percent for the residuals of a gunshot wound to the right or left index fingers. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered whether the Veteran's residuals of a gunshot wound to the index fingers present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of pain and limited motion. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Nonetheless, the Board has referred the Veteran's claim of unemployability, for all of his service-connected disabilities combined, to the RO for extraschedular consideration. The Board has also considered whether the Veteran may be entitled to special monthly compensation due to loss of use of the hand. Loss of use of a hand, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow. 38 C.F.R. § 4.63. In the present case, while it may be painful and difficult, the Veteran still has the ability to pick up objects and perform tasks such as writing. Therefore, the Veteran does not suffer from loss of use of a hand as defined in 38 C.F.R. § 4.63 and special monthly compensation is not warranted. 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. However, as discussed above, the Veteran's gunshot wound residuals of the index fingers have been no more than 10 percent disabling at any time during the pendency of the claim. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claims of entitlement to disability evaluations in excess of 10 percent for gunshot wound residuals of the right index finger and the left index finger must be denied. Right Middle Finger The Veteran also contends that he is entitled to a compensable disability evaluation for his service-connected gunshot wound residuals of the right middle finger. As outlined below, the evidence of record is at least in equipoise, demonstrating that the Veteran is entitled to a disability evaluation of 10 percent for this condition. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As already noted, a 10 percent disability evaluation is warranted under Diagnostic Code 5229 when there is limitation of motion of the index or long finger with a gap of one inch (2.5 cm) 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. 38 C.F.R. § 4.71a. This is the maximum disability evaluation available under this Diagnostic Code. During the June 2006 VA examination, the Veteran was found to have a 2.5 cm gap from the middle finger to the palm. As such, a 10 percent disability rating would be warranted under Diagnostic Code 5229. However, according to the November 2010 VA examination, the right long finger had limited extension of the PIP joint by 10 degrees with no gap between the long finger and the proximal transverse crease of the hand. There was ankylosis of the PIP joint of the right long finger noted at this time, however. Under Diagnostic Code 5226, ankylosis of the long finger warrants a disability evaluation of 10 percent. If only the MP or PIP joint is anklyosed, and there is a gap of two inches (5.1 cm) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, then the finger is to be rated as favorable ankylosis. In the present case, the Veteran has been diagnosed with ankylosis of the PIP joint. Also, while the Veteran was not found to have a gap between the fingertip and the proximal transverse crease of the palm during examination in November 2010, he was been found to have a gap of up to 2.5 cm during the pendency of this claim. Therefore, when affording the Veteran the full benefit of the doubt, the Board concludes that his overall disability rating is more appropriately characterized as 10 percent throughout the pendency of this claim. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent at any time during the pendency of this claim. As noted in the previous section, there are no additional Diagnostic Codes that would allow for a disability evaluation in excess of 10 percent for either index finger, as there is no evidence of ankylosis of more than one digit, or, evidence of loss of use of the hand. See 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Codes 5220-23. The Board has again considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). However, the rating criteria reasonably describe the Veteran's disability level and symptomatology of pain and limited motion. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Nonetheless, the Board has referred the Veteran's claim of unemployability, for all of his service-connected disabilities combined, to the RO for extraschedular consideration. 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. However, as discussed above, the Veteran's gunshot wound residuals of the index fingers have been no more than 10 percent disabling at any time during the pendency of the claim. As such, staged ratings are not warranted. Having afforded the Veteran the full benefit of the doubt, the Board concludes that the Veteran is entitled to a disability evaluation of 10 percent for the gunshot wound residuals of the right middle finger. The claim is granted. Scars Relevant Laws and Regulations Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7802 provides that 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. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that 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. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Amendments were made to the criteria for rating the skin, effective as of October 23, 2008. However, the amended regulations are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2009)). In the present case, the amended regulations are not applicable, since VA received the Veteran's claim in May 2006. Analysis The Veteran contends that he is entitled to disability evaluations in excess of 10 percent for scarring of the right index finger, left index finger and right middle finger. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to higher disability evaluations for his scarring at any time during the pendency of this appeal. For historical purposes, the Veteran was granted service connection for scars of the index fingers, bilaterally, and the right middle finger, in an October 2003 rating decision. Disability ratings of 10 percent were assigned for each scar under Diagnostic Code 7804, effective as of September 1, 2000. VA received the Veteran's claim for an increased disability evaluation in May 2006, which was denied by the RO in an August 2006 rating decision. The Veteran submitted a timely notice of disagreement to this decision in October 2006 and he appealed the decision to the Board in June 2007. Each of the scars on appeal is presently rated as 10 percent disabling under Diagnostic Code 7804, which applies to superficial scars that are painful on examination. 38 C.F.R. § 4.118. A 10 percent disability rating is the highest disability evaluation available under this Diagnostic Code. As such, a higher disability rating is not warranted under this code. The Board has also considered whether there are any other relevant diagnostic codes that may permit a higher disability evaluation. As noted above, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. 38 C.F.R. § 4.118. According to the June 2006 VA examination, there was actually no visible scarring, and the November 2010 VA examiner found the scars to be well-healed. There is no other evidence to suggest that these scars are deep or cause limited motion, and as such, Diagnostic Code 7801 is not for application. The Board has also considered Diagnostic Code 7802. Under this code, scars, other than the head, face, or neck, that are superficial or that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. There is no evidence to suggest that the Veteran's scars of the index fingers and the right middle finger cover an area of 144 square inches or more. As such, the Veteran would not be entitled to a separate disability rating under this code. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. According to the November 2010 VA examination, the Veteran's scars were well-healed, suggesting that they are not unstable. Diagnostic Code 7805 also provides that other scars are to be rated on limitation of function of affected part. Id. However, there is no evidence to suggest that the Veteran's scarring has resulted in functional limitation above and beyond that already considered by the 10 percent disability rating assigned for limitation of motion of each joint. Therefore, there are no additional relevant diagnostic codes that would allow for a higher or separate disability evaluation. The Board has again considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). However, the rating criteria reasonably describe the Veteran's disability level and symptomatology of pain upon examination. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Nonetheless, the Board has referred the Veteran's claim of unemployability, for all of his service-connected disabilities combined, to the RO for extraschedular consideration. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has again considered whether a staged rating is appropriate. However, in the present case, there is no evidence suggestive of entitlement to a disability evaluation in excess of 10 percent for any of the Veteran's scarring. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to disability evaluations in excess of 10 percent for scarring of the right index finger, the left index finger, and the right middle finger, must be denied. ORDER Entitlement to service connection for squamous cell carcinoma of the second digit of the right hand, to include as secondary to a service-connected right index finger disability, is denied. Entitlement to a disability evaluation in excess of 10 percent for the residuals of a gunshot wound of the right index finger is denied. Entitlement to a disability evaluation in excess of 10 percent for the residuals of a gunshot wound of the left index finger is denied. Entitlement to a disability evaluation in excess of 10 percent for a gunshot wound scar of the right index finger is denied. Entitlement to a disability evaluation in excess of 10 percent for a gunshot wound scar of the left index finger is denied. Entitlement to a disability evaluation of 10 percent for the residuals of a gunshot wound of the right middle finger is granted. Entitlement to a disability evaluation in excess of 10 percent for a gunshot wound scar of the right middle finger is denied. REMAND The Veteran is seeking a total disability rating for compensation based on individual unemployability (TDIU). Entitlement requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Presently, the Veteran is service-connected for residuals of a gunshot wound to the right index finger and left index finger (each rated as 10 percent disabling), gunshot wound residuals of the right middle finger (rated as noncompensable), and residual scarring of the right index finger, left index finger and right middle finger (each rated as 10 percent disabling), for a combined disability evaluation of 50 percent. As such, the Veteran does not meet the percentage requirements laid out in 38 C.F.R. § 3.340. Nonetheless, entitlement to the benefit on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. According to the November 2010 VA examiner, the Veteran's employability was limited due to limitation in movement in the hands from arthritic changes and from age. This opinion alone is not sufficient to demonstrate unemployability since advancing age may not be considered. Id. Nonetheless, it does suggest possible unemployability. When there is plausible evidence that a Veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, a Veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation and Pension Director. Based on the evidence above, such referral is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO should submit the claim for a TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The RO should follow the dictates of section 4.16(b) in making this submission. 2. The RO should then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2010). ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs