Citation Nr: 1229324 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 08-29 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 10 percent for residual left hand pain with decreased strength; metacarpal fracture (left hand disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active from September 1977 to September 1980 and from July 1981 to July 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In October 2008, the Veteran was scheduled to testify during a personal hearing at the RO but failed to appear and did not request that the hearing be rescheduled. The Board finds that all due process requirements were met regarding his hearing request. The Board notes that the Veteran filed timely notice of disagreements (NODs) with a December 2008 rating decision that denied entitlement to a total rating based upon individual unemployability due to service connected disabilities (TDIU) and a June 2008 rating decision that granted service connection and an initial 10 percent rating for a back disability. However, he did not perfect his appeal of either claim and the claims were not certified for appellate consideration. FINDING OF FACT The Veteran's service-connected left hand disability is manifested by subjective complaints of pain and numbness without objective medical evidence of moderate incomplete paralysis of the minor extremity. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for residual left hand pain with decreased strength; metacarpal fracture, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.71a, 4.124a, Diagnostic Code (DC) 5227-8715 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100-5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The record reflects that, over the course of this appeal, the RO provided the appellant with notice as to how he can prevail on his claim for an increased rating, and of his, and VA's, respective duties for obtaining evidence by way of a letter dated in December 2007. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Moreover, he was advised about the criteria governing assignment of an evaluation and the effective date that could be assigned, should an increased rating be granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record establishes that the Veteran had a full and fair opportunity to participate in the adjudication of his claim. Moreover, the evidence submitted by the Veteran since the beginning of this claim, establishes that he received notice of each element required to substantiate the claim for an increased rating. The Board concludes that the appeal may be adjudicated without a remand for further notification. Additionally, a review of the record indicates that the appellant's service treatment records were associated with the claims file and his known VA and non-VA treatment records have been obtained, to the extent available, and included in the claims file. Following issuance of the September 2008 statement of the case, additional VA and non-VA medical records, dated to June 2011, were added to the claims file. In a May 2012 written statement, the Veteran's service representative provided a waiver of initial RO review of that new evidence. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37, 20.1304 (2011). A review of the Veteran's Virtual VA electronic file does not reveal any additional records pertinent to the claim on appeal. VA must obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The record reflects that, in conjunction with this claim, the appellant underwent VA examination in January 2008 and the examination report is contained in the claims folder. A review of the examination report reveals that a thorough examination of the appellant was accomplished and the opinion provided was supported by sufficient rationale. Therefore, the Board finds that the VA examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Moreover, during the course of this appeal, the appellant proffered documents and statements in support of his claim. In sum, VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. II. Factual Background and Legal Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The present appeal involves the Veteran's claim that the severity of his service-connected left hand disability warrants a higher disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. 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). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Regulations require that where there is a question as to which of two evaluations is to 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. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2011). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. at 49. The Board observes that the words "slight", "moderate", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2011). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6. The Veteran's statements describing the symptoms of his service-connected left hand disability are deemed competent evidence. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. In evaluating musculoskeletal disabilities additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2011). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (2011). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2011). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) held that, where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45. The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Degenerative arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2011). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. By way of history, the record reflects that, in a July 1986 rating decision, the RO granted service connection for residuals of a fracture of the 4th metacarpal of the Veteran's left hand and assigned a noncompensable disability evaluation under DC 5299-5227. In a July 1995 rating decision, the RO granted a 10 percent rating for the Veteran's service-connected left hand disability under DC 5227-8715. In October 2007, the RO received his current claim for an increased rating. The Veteran's left hand disability is currently evaluated under Diagnostic Code 5227-8715. In the assignment of diagnostic code numbers, hyphenated diagnostic codes may be used. Injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases will be identified by the number assigned to the disease itself, with the residual condition added, preceded by a hyphen. 38 C.F.R. § 4.27. The January 2008 VA examination report, discussed infra, indicates that the Veteran is right hand-dominant. Under 38 C.F.R. § 4.71(a), DC 5227, favorable or unfavorable ankylosis of the left ring or little (minor) finger is rated as noncompensably disabling. Extremely unfavorable ankylosis of the left ring or little finger may be rated as an amputation and rated under DC 5156. See 38 C.F.R. § 4.71a, DC 5227. Under the provisions of DC 5156, a 10 percent rating will be assigned for amputation of the ring or fifth finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. A regulatory note following DC 5215 states that extremely unfavorable ankylosis of a finger exists if all the joints of the finger are ankylosed in extension or in extreme flexion, or if there is rotation and angulation of bones. DC 5215, Note (a). 38 C.F.R. § 4.71a, DC 5156, 5215 (2011). Zero degrees of flexion for the index, long, ring, and little fingers represents the fingers fully extended, making a straight line with the rest of the hand. Full range of motion for the index, long, ring, and little fingers is metacarpal phalangeal joint (MCP) flexion from zero to 90 degrees, proximal interphalangeal joint (PIP) flexion from zero to 100 degrees, and distal interphalangeal joint (DIP) flexion from zero to 70 or 80 degrees. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (1). Diagnostic Code 5230 concerns limitation of motion of the ring or little finger. Any limitation of motion merits a noncompensable evaluation thereunder. 38 C.F.R. § 4.71a, DC 5230 (2011). When there is limitation of motion of two or more digits, each digit is evaluated separated and their evaluations combined. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (5). Complete paralysis of the median nerve contemplates the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 38 C.F.R. § 4.124a , Diagnostic Code 8515 (2011). Neuralgia and neuritis contemplate neurological impairment of the fingers, the thumb, and flexion of the wrist. 38 C.F.R. § 4.124a , Diagnostic Codes 8615, 8715 (2011). DC 8715 addresses the criteria for evaluating neuralgia of the median nerve. 38 C.F.R. § 4.124a. Under DC 8715, a 10 percent rating is warranted for mild incomplete paralysis of the major or minor extremity. Id. A 20 percent rating is warranted for moderate incomplete paralysis of the minor extremity. Id. A 30 percent evaluation is assigned for severe incomplete paralysis of a minor extremity. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. VA and non-VA medical records and examination reports, dated from 2007 to 2011, include private medical records reflecting the Veteran's complaints of left hand pain. The relevant evidence of record includes September and October 2007 records from Dr. R.M.A.V. to the effect that he treated the Veteran since 2002 for a fracture of the left hand with a history of continuous and recurrent pain. It was noted that the Veteran's left hand condition progressively worsened, with increased symtoms of pain and limitation of mobility in the area. In January 2008, the Veteran underwent VA examination. According to the examination report, the VA examiner noted the Veteran's history of left fourth metacarpal fracture while playing basketball in service. The Veteran said he was treated with a cast but not surgery. The Veteran currently complained of daily left arm numbness and associated neck pain. He said in the past he had "EDX" (edatrexate?) due to complaint of numbness without any irregular findings. The Veteran also reported daily left hand posterior aspect aching pain that was intermittent and associated with repetitive activities done during his workday as a mailman. On occasion, while carrying letters in his left hand, he switched them to his right hand because of it. The Veteran denied any left hand surgery or treatment for his left hand. He was right hand dominant and did not describe loss of strength or dexterity during the examination. Further, it was noted that the Veteran worked as a mailman and said that on some occasions he had to switch letters he carried to his right hand due to left hand aching pain. The Veteran was independent in activities of daily living. The Veteran complained of difficulty carrying heavy objects when he needed his left hand to assist him with his right hand when carrying the heavy objects. It was noted that the Veteran did not describe loss of motion or functional impairment during the examination. Objectively, there was no ankylosis of the left hand. Range of motion of the wrist was dorsiflexion from 20 to 30 degrees. MCP flexion was to 30 degrees; thumb abduction and rotation was thumb pad faced the finger pads. Evaluation of limitation of motion of single or multiple digits of the left hand was left hand MCP, PIP, and DIP joints, 0 degrees of extension to 90 degrees of flexion of digits 2, 3, 4, and 5. Normal ranges of motion for index, long, ring, and little fingers are MCP joint from 0 to 90 degrees of flexion; PIP joint from 0 to 100 degrees of flexion; and DIP (terminal) from 0 to 70 or 80 degrees of flexion. Evaluation of the Veteran's left hand as a unit revealed that he was able to touch the tip of digit 1, 2, 3, 4, 5 to the proximal transverse crease of the palm; he was also able to touch the tip of his thumb to digits 2, 3, 4, 5 tips. He was able to oppose thumb to digits 2, 3, 4, 5. The Veteran's left hand grip strength was normal (5/5) of flexors and extensors. He was able to use his left hand with adequate strength to push, pull, and twist. He had adequate dexterity of twisting, probing, touching, and for expression (the VA examiner noted parenthetically that the Veteran did not use his left hand to write as he was right hand dominant). It was also noted that the Veteran had no decreased range of motion of the left hand. It was noted that results of x-rays of the Veteran's left hand performed in October 2001 were normal. The diagnosis was residuals of left hand fourth metacarpal fracture. In a February 2008 signed statement, a private physician reported that he treated the Veteran since 2002 for a history of left hand trauma. An August 2009 private medical indicates that the Veteran had a marked weakness in his left gross grip. A February 2011 examination report for aid and attendance completed by a private physician indicates that the Veteran had marked weakness of gross grip and very limited fine motor coordination with no repetitive hand use (neither left nor right hand specified). A September 2011 VA examination report regarding the Veteran's need for aid and attendance or housebound status reflects that he had normal upper extremity function. It was noted that results of x-rays of the Veteran's hand performed in October 2001 (due to his complaint of left hand numbness and weakness) were normal. Diagnoses included degenerative disc disease of the cervical and lumbar spines and coronary artery disease. The VA examiner commented that the Veteran had a history of a "remote" left hand fracture that was "now resolved (as confirmed radio graphically) and is not debilitating". Upon review of the probative and competent medical and other evidence of record, the Board concludes that the evidence does not demonstrate that the Veteran's left hand disability approximates moderate incomplete neuralgia, such that a higher rating would be warranted under Diagnostic Code 8715. The evidence demonstrates that the Veteran does not have decreased strength in the left hand such as to warrant a rating in excess of the currently assigned 10 percent evaluation. Notably, the January 2008 VA examiner reported that the Veteran had normal strength in his left hand. While the August 2009 private medical record reflects marked weakness in the left gross grip and the February 2011 private medical record notes marked weakness of gross grip (neither right nor left hand specified), the September 2011 VA examiner reported that the Veteran had normal upper extremity function with a history of a "remote" left hand fracture that was now "resolved" and was "not debilitating". The evidence does not show motor impairment of the left upper extremity attributed to the service-connected left hand disability commensurate with moderate incomplete paralysis such as to warrant a 20 percent rating. Accordingly, the Board finds that the Veteran's left hand disability most nearly approximates mild incomplete neuralgia of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8715. The evidence does not show organic changes, such as muscle atrophy or trophic changes that would warrant a higher rating. Nor is a higher rating warranted when considered under DC 5227 as there is no evidence of ankylosis of the left hand, nor does the Veteran have any decreased range of motion of the left hand, as reported by the January 2008 VA examiner. Even with consideration of DeLuca, supra, the objective evidence of record reflects the Veteran's complaints of pain and numbness but is not reflective of deficits of motor strength, muscle atrophy, or the like to warrant an increased evaluation. The Board recognizes the Veteran's subjective complaints of constant left hand pain with numbness, but is of the opinion that such complaints of pain are contemplated in the currently assigned 10 percent evaluation. A separate evaluation for pain is not for assignment. Spurgeon. As such, the Board concludes that the objective evidence of record is against a rating in excess of 10 percent for the Veteran's service-connected left hand disability. Moreover, as the preponderance of the probative medical and other evidence of record is against the claim for an increased rating for the left hand disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). The Board has also considered whether the Veteran's left hand 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) (2011); 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, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a TDIU as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an unappealed September 2010 rating decision, the RO denied the Veteran's most recent claim for a TDIU and a December 2010 VA examiner reported that the Veteran retired in 2009 due to his service-connected back disability. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. Finally, in view of the holding in Hart, the Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected left hand disability, as the Court indicated can be done in this type of case. Based upon the record, the Board finds that at no time since the Veteran filed his claim for an increased rating has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER A rating in excess of 10 percent for residual left hand pain with decreased strength; metacarpal fracture is denied. ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs