Citation Nr: 1129945 Decision Date: 08/12/11 Archive Date: 08/23/11 DOCKET NO. 07-24 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for residuals of healed fractures to the left hand, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran and N.H. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1979 to June 1981 and from November 1983 to November 1986, and in the Coast Guard from March 1988 to June 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which that denied an increased rating for healed fractures with residual paresthesias, left hand (minor), currently rated as 10 percent disabling. The Veteran testified before the undersigned at a June 2008 hearing at the RO (Travel Board hearing). The hearing transcript is of record. In October 2008, the Board remanded the case for further action by the agency of original jurisdiction (AOJ). The case has been returned to the Board for further appellate action. As noted in the Board remand, the Veteran has raised the issue of entitlement to service connection for an ulnar nerve disability affecting the left elbow. The record reflects that this issue still has not been addressed by the AOJ. Accordingly, the claim is again referred back to the RO for appropriate action. FINDING OF FACT The Veteran's left hand disability is manifested by subjective symptoms consisting of pain, finger cramping, tingling, and numbness of the 2nd-4th fingers, causing no more than mild incomplete paralysis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of healed fractures to the left hand have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8515 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, VA must inform 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant 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; (2) if the diagnostic code under which the claimant is rated 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In an June 2006 letter, the RO or AMC notified the Veteran of the evidence needed to substantiate his claim for an increased rating. The letter told the Veteran that he could substantiate the claim with evidence that the disability had worsened. It satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of the Dingess notice, and the surviving elements of Vazquez-Flores notice, including the disability- rating and effective-date elements of the claims, in October 2006, August 2007, June 2008 and November 2008 letters. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. There was a timing deficiency in that the October 2006, August 2007, June 2008 and November 2008 letters were sent after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in supplemental statements of the case issued in June 2007, June 2008 and July 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. The Veteran reported during his June 2008 Board hearing that he had not received any private treatment. The Veteran was also provided proper VA examinations in July 2006, April 2009 and May 2009, to evaluate his left hand disability and there is no evidence or contention that there has been a change in the Veteran's symptoms since the last examination in May 2009. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2010) impose, two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's Travel Board hearing, the undersigned identified the issue, asked about relevant treatment to determine whether all records had been obtained and sought information as to the current severity of the disability in order to determine whether a new examination was needed. The undersigned thereby sought to discover whether there was evidence that the Veteran should be asked to submit. After suggesting evidence that could be submitted, the undersigned kept the record open for 60 days, so that the evidence could be given to VA. The duties imposed by Bryant were thereby met. The Board remanded the claim so that the Veteran could receive the full notice then required by Vazquez-Flores, and to afford him a new examination in light of his testimony that the disability had gotten worse. The Appeals Management Center sent the Veteran a November 2008 letter that contained the Vazquez-Flores notice. The Veteran was afforded new VA examinations in April and May 2009. The examination provided information as to all neurologic, orthopedic, and scar residuals of the service connected injury; as was requested in the remand. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall 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. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered; it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2010). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran has been evaluated for his minor hand disability under Diagnostic Codes 8599 and 8515. 38 C.F.R. § 4.124a (2010). Under Diagnostic Code 8515, for the minor hand, mild incomplete paralysis of the median nerve warrants a 10 percent evaluation, moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation, and severe incomplete paralysis of the median nerve warrants a 40 percent evaluation. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the place of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, and the index and middle finger remain extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at the right angle to the palm; weakened flexion of the wrist; and pain with trophic disturbances warrants a 60 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The rating schedule provides the following guidance in evaluating the severity of disabilities of peripheral nerves: Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2010). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2010). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2010). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background Service treatment records show that the Veteran sustained a crush injury of the left hand in May 1990. The Veteran has reported that the injury occurred when a hatch fell and struck his hand. On VA examination of the left hand in July 2006, there were no sensory deficits in the hand in any areas. There was no ulnar, radial or median nerve neuropathy. The Veteran had good grip and wrist function, with full flexion and extension of the metacarpophalangeal (MP), proximal interphalangeal (PIP) and distal interphalangeal (DIP) joints of all fingers. There was no interosseous weakness or atrophy. The examiner diagnosed healed fractures with residuals, left hand. In January 2008, VA conducted an electromyographic examination of the Veteran's left upper extremity. The median and radial nerves were found to be normal. On neurologic evaluation in conjunction with the examination, there was no motor deficit, allodynia (pain on stimulus such as touch), tremor, atrophy, edema, or cyanosis; and reflexes were normal. At his hearing the Veteran testified that his hand disability had gotten progressively worse. He disputed reports that some of his current disability was related to diabetes. He said that diabetes symptoms had improved, but that his hand symptoms had remained. During his most recent VA examination in May 2009, the Veteran complained of numbness and tingling to both hands. The examiner noted that the Veteran had been diagnosed as having ulnar neuropathy of the elbows and diabetes mellitus, neither of which has been found to be related to service or to the Veteran's service-connected left hand disability. See May 2006 and January 2008 EMG studies. He denied any decrease in hand strength or hand dexterity or other hand symptoms. He also denied any flare-ups of joint symptoms. On physical examination, range of motion in the index, long, ring, little fingers and thumb was normal on the left and right, and there was no evidence of pain during range of motion. There was no amputation, ankylosis or deformity of any digits. Strength was not decreased for pushing, pulling or twisting, and there was no decreased dexterity for twisting, probing, writing, touching and expression. The examiner noted that there was decreased sensation to both hands at the tip of the fingers in a non-dermatomal distribution, but he also noted that this was due to the Veteran's non service-connected diabetes mellitus. He also noted that the first MCP joint was tender to palpation, and X-rays of the left hand revealed minimal degenerative changes in the first metacarpophalangeal joint. X-rays also revealed evidence of deformity of the tip of the distal phalanx of the fourth digit, consistent with an old fracture, deformity of the proximal phalanx of the second digit, which the examiner noted was probably also due to an old healed fracture. The examiner's diagnosis was healed 4th, 3rd and 2nd finger fractures, with no residuals, and he noted that there were no objective findings related to fractures of the left fingers. He also diagnosed mild degenerative changes of the first MCP joint, which he concluded was unrelated to the finger fractures. Analysis. The Veteran's neurologic symptoms have been wholly subjective or sensory, inasmuch as diagnostic studies have been normal and neurologic examinations have not shown a loss of motor strength or reflexes. There has been debate as to whether the Veteran's symptoms are attributable to the service connected injury or to the non-service connected diabetes or not yet service connected ulnar nerve damage. Medical professionals have concluded that the symptoms are not related to the service connected injury; however, even if all the symptoms were attributed to the service connected injury, the symptoms are wholly sensory and confined to the tips of the fingers or the MCP of the first finger. At the most recent examination, the Veteran reported that the symptoms were intermittent. The examination showed that there was no decrease in hand strength. Given these facts, it cannot be said that the Veteran's injury results in more than mild incomplete paralysis. The recent examination shows that the Veteran was found to have arthritis in the left hand. Arthritis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 (2010), which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Limitation of motion of a finger is noncompensable if motion is possible to within one inch of the thumb pad and fingers or if the finger tip can come to within one inch of proximal transverse fold of the palm with the finger flexed to the extent possible and extension is limited by less than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5228-5230 (2010). The Veteran does not have compensable limitation of motion of the fingers, because the VA examination showed that he could touch the transverse fold of the palm, and there was no gap between the thumb pad and the fingers. There was no pain or additional limitation with consideration of the DeLuca factors. Although the Veteran has X-ray evidence of arthritis, the VA examination showed that there was no objective evidence of pain on motion. Hence, a separate 10 percent rating could not be awarded under Diagnostic Code 5003. The Board notes further that although the Veteran has been noted on examination to have a 6.0cm x0.2cm long, y-shaped, hypopigmented, linear and ropy scar on the left palm, associated with his service-connected left hand disability, as the scar has not been shown during the period on appeal to be unstable or painful; deep and covering an area of at least 6 square inches, but less than 12 square inches; or superficial and covering an area of 144 square inches or greater; a separate rating under Diagnostic Codes 7800-7805 is also not warranted. The VA scar examination showed that the Veteran's scar was far less than 6 square inches and was not painful or otherwise symptomatic. Effective October 23, 2008, the Schedule for rating criteria that addresses the evaluation of scars was revised. See 73 Fed. Reg. 54,708 (Oct. 23, 2008) (to be codified at 38 C.F.R. pt. 4). These new criteria apply to applications for benefits received on or after October 23, 2008, or upon request from a Veteran who was rated under the applicable criteria before this date. Id. The Veteran's claim was received prior to this date and the Board has not received a request from the Veteran or his attorney to be rated under the revised criteria. Hence, those rating criteria do not need to be addressed at this time. Extra-schedular consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2010). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). During his June 2008 Travel Board hearing, he reported that as the main requirement of his job was typing on a keyboard, and that his left hand disability had a negative effect on his employment, and caused him to miss perhaps one day per week from work. However, he also reported that he was not in jeopardy of losing his job due to his left hand disability. On examination in May 2009, he reported that the disability had a significant effect on his employment due to decreased strength and pain in the upper extremity. As noted above; however, the examiner found no decrease in hand strength. Moreover, the criteria for rating the disability, as also discussed above, contemplate decreased strength and pain. The criteria also contemplate considerable time lost from employment. 38 C.F.R. § 4.1. The Veteran's disability is manifested by subjective complaints of pain, finger cramping, tingling and numbness and loss of sensation in the fingers. This symptomatology is also contemplated by the rating criteria. Hence, referral for consideration of extraschedular ratings is not warranted. Thun, 22 Vet. App. 114-15. The weight of the evidence is against an increased rating. Reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2010). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that a service connected disability has caused unemployability. In July 2006, the Veteran reported that he was not working, but did not indicate why. His testimony at the Travel Board hearing shows that he was working. He also reported that he was working full-time as a hospitality clerk and that he had been employed for five to ten years. As there has been no allegation or evidence of unemployability, further consideration of entitlement to TDIU is not required. ORDER An increased rating for residuals healed fractures to the left hand is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs