Citation Nr: 1127322 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 05-23 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial compensable evaluation for residuals of a boxer's fracture, fifth metacarpal, right hand. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active military service from November 1983 to June 1984. Thereafter, he was a Member of the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2007 and September 2009, the Board remanded this matter to the RO for additional development. The Board notes that in a July 2005 statement, the Veteran claimed that he was unable to work due to his medical conditions, thus he raised the issue of entitlement to TDIU. The issue of whether entitlement to TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. The issue of entitlement to a 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. FINDING OF FACT The Veteran's fifth metacarpal of the right hand disability has been productive of subjective complaints of painful motion, which the Board finds to be credible. CONCLUSION OF LAW The criteria for an initial disability evaluation of 10 percent, but no more, for painful motion of the service-connected fifth metacarpal of the right hand have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the Veteran of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the claim of entitlement to an initial compensable evaluation for residuals of a boxer's fracture, fifth metacarpal, right hand, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements, but has made no such assertions in this case. Goodwin v. Peake, 22 Vet. App. 128 (2008). Nevertheless, the record reflects that the Veteran was provided a meaningful opportunity to participate effectively in the processing of his claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The Veteran was notified that his claim was awarded with an effective date of April 23, 2002, the date of his claim, and a zero percent rating was assigned. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating, and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included on his Substantive Appeal. Although he was not provided pre-adjudicatory notice that he would be assigned an effective date in accordance with the facts found as required by Dingess, he was assigned the date of the claim as an effective date, the earliest permitted by law. 38 U.S.C.A. § 5110(a). As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran, whereas VA has obtained service treatment records, obtained private and VA outpatient treatment records, afforded the Veteran VA examinations, obtained Social Security Administration records, and assisted the Veteran in obtaining evidence. Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise. There has been full compliance with the September 2007 and September 2009 remands. Stegall v. West, 11 Vet. App. 268 (1998). VA has substantially complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Fifth Metacarpal of the Right Hand, Boxer's Fracture The Veteran maintains that he is entitled to an initial compensable evaluation for his service-connected fifth metacarpal of the right hand disability. In that regard, disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Moreover, while the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the Veteran's fifth metacarpal of the right hand, where, as in this case, an appeal stems from an initial rating, VA must frame and consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection to a prospective rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Furthermore, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. In the present case, in a March 2004 rating decision, the RO granted service connection and assigned a zero percent evaluation for the Veteran's fifth metacarpal of the right hand disability under Diagnostic Code (DC) 5299-5230, concerning limitation of motion of the little finger. DC 5230 provides that any limitation of motion of the little finger (major or minor) warrants a maximum noncompensable disability evaluation. Under DC 5227, ankylosis of the right or little finger is also noncompensable. 38 C.F.R. § 4.71a, DC 5227. The Note under DC 5227 provides that consideration should be made as to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Id. The Veteran was afforded a VA examination in August 2002, at which time the examiner noted the Veteran's history of a right fifth digit fracture that occurred during basic training while the Veteran was in service; the fifth digit was then reboken and reset, as well as casted, but the Veteran did not receive treatment until 10 days later. On examination, the muscle strength of the Veteran's hand grip was equal bilaterally. Range of motion of the right little finger was not noted. The examiner did not review the Veteran's claims file but assessed a fifth digit fracture without loss of strength or function. The Veteran was afforded a second VA examination in July 2006, at which time the examiner noted the Veteran's complaints that he had suffered from pain due to his disability for the past 15 years. Specifically, the Veteran reported that the pain occurred three times per week and traveled to the right fifth digit, and lasted for two hours. The pain was relieved by medication, including Oxycodone, Morphine, and Gabapentin. On examination of the Veteran's right hand, the examiner noted that the Veteran's right hand was the dominant hand. Range of motion of the right little finger was from 0 to 70 degrees. The Veteran's right hand strength was slightly reduced and his left hand strength was within normal limits. Upon repetition, the Veteran's right little finger joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. The Veteran was afforded a third VA examination in December 2009, at which time he reported experiencing a decrease in his right hand strength and dexterity. He further reported experiencing flare-ups, to include his service-connected right fifth digit, as well as all of his other fingers and thumb of his right hand; specifically, during winter, with the flare-ups lasting for five to six months. On examination of the Veteran's right hand, range of motion of the right little finger was normal, without objective evidence of pain. There was no additional limitation of motion upon repetition. There was no gap between the right thumb pad and the fingers, nor was there objective evidence of pain. There was no evidence of amputation of a digit or part of a digit. There was no evidence of ankylosis of any of the digits. The right little finger was deformed; specifically, there was evidence of early Dupuytren's. There was evidence of decreased strength for pushing, pulling and twisting. X-rays demonstrated a probable healed fifth metacarpal fracture and there were no appreciable degenerative changes in the joints. The examiner reviewed the Veteran's claims file and assessed right hand pain. He further noted that due to the right hand injury, the Veteran could only perform sedentary labor, not any labor that required right hand dexterity. The examiner was afforded a fourth VA examination in February 2011, at which time he reported several injuries (in addition to his service-connected fifth metacarpal) that occurred subsequent to discharge from active duty service, including fracturing his right second metacarpal, fracturing of his right wrist scaphoid bone, and fracturing his fourth metacarpal. He further reported experiencing an overall decrease in right hand strength, as well as dexterity. He also indicated that he experiences pain in his hand during rainy and cold weather. On examination of the Veteran's right hand, there was no evidence of amputation of a digit or part of a digit. There was no evidence of ankylosis of one or more of the digits. There was no evidence of any deformity of the digits. The was evidence of decreased strength for pushing, pulling, and twisting mostly due to the Veteran's nonservice-connected right wrist fusion; he could not effectively twist his wrist without pain and has lost much of his wrist extension. There was evidence of decreased dexterity for twisting, probing, writing, touching, and expression, due to his nonservice-connected fractures and right wrist fusion discussed above. There was marked loss of right wrist motion compared to the left wrist; however, the examiner did not distinguish whether the service-connected right fifth metacarpal contributed to the loss of motion, nor did he indicate which nonservice-connected disabilities contributed to the loss of motion. Upon review of the Veteran's claims file, the examiner diagnosed a fractured right fifth metacarpal, treated with a cast, as well as several other nonservice-connected diagnoses. The examiner opined that the Veteran's nonservice-connected disabilities to his right hand/wrist significantly limited his ability to work, especially due to his right wrist fusion; however, the Veteran's service-connected right fifth metacarpal did not in any way disable him from working. Upon review of the evidence of record, the Board notes that an initial compensable rating is not warranted under 38 C.F.R. § 4.71a, DC 5227 or DC 5230, relating to limitation or ankylosis of the right little finger. The evidence clearly demonstrates that the Veteran does not have ankylosis of the right little finger, and shows that there is no interference with the overall function of the hand as a result of the residuals of a fracture of the right little finger. Moreover, even if ankylosis were shown, a noncompensable rating would be assigned. As for consideration of the amputation criteria, the evidence demonstrates fairly good to normal range of motion, and the disability is not akin to amputation. Thus, evaluation of the little finger as amputation is not warranted, and no additional evaluation is warranted pursuant to the Note under DC 5227. To the extent that DC 5230 contemplates limitation of motion, further consideration of 38 C.F.R. §§ 4.40 and 4.45 is not warranted as the maximum (non-compensable) rating has been assigned. See Johnston v. Brown, 10 Vet. App. 80 (1997). However, although the Veteran's right little finger demonstrates essentially normal range of motion throughout the rating period on appeal; the Board notes that the Veteran has consistently indicated that he experiences pain. To that end, he is certainly competent to report symptoms capable of lay observation, notably pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Board finds that consideration under 38 C.F.R. § 4.59 is also warranted. This section reflects, among other things, that it is the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. As noted above, the Veteran has credibly described pain during the pendency of this appeal. Accordingly, an 10 percent disability evaluation, but no more, for the service-connected residuals of a boxer's fracture, fifth metacarpal, right hand under 38 C.F.R. § 4.59 for the entire pendency of this appeal. Given the total absence of schedular criteria allowing for a compensable evaluation (outside of 38 C.F.R. § 4.59), there exists no basis for an even higher evaluation. Finally, the Veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. The schedular criteria, including 38 C.F.R. § 4.59, fully contemplate the Veteran's disability. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). In summary, the evidence supports an initial 10 percent evaluation for the service-connected residuals of a boxer's fracture, fifth metacarpal, right hand. To that extent, the appeal is granted. 38 C.F.R. § 4.3. ORDER Entitlement to an initial 10 percent evaluation for residuals of a boxer's fracture, fifth metacarpal, right hand, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND As noted above, a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, supra. Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the appeal for benefits for the underlying disability. The Veteran has not yet received notice of the evidence needed to substantiate a TDIU claim. Such action, and an adjudication of the claim, are needed in view of Rice. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms compliant with 38 C.F.R. § 3.159(b), the need for additional evidence regarding the TDIU claim. 2. After completion of the above development, the Veteran's claim of entitlement to TDIU should be adjudicated. If the determination is unfavorable, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs