Citation Nr: 1237462	
Decision Date: 11/01/12    Archive Date: 11/09/12

DOCKET NO.  10-16 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a compensable evaluation for residuals of a 5th metacarpal fracture, right hand, with degenerative joint disease.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel






INTRODUCTION

The Veteran served on active duty from November 1965 to December 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009  rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record.  Here, the issue of entitlement to a TDIU was formally raised by the Veteran in October 2011, and not pursuant to an inferred claim within the record.  In a September 2012, the Veteran was issued a Statement of the Case (SOC) in which TDIU was denied.  Following a review of the claims file, as well as the Virtual VA system, the Veteran has not submitted a formal appeal to this issue.  Further, the issue of entitlement to a TDIU was not addressed by the Veteran's representative on VA Form 646 dated September 5, 2012.  As such, the issue of entitlement to a TDIU will not be addressed herein.


FINDING OF FACT

The Veteran's residuals of a 5th metacarpal fracture do not manifest with ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, and the Veteran's finger is intact.


CONCLUSION OF LAW

The criteria for an initial compensable rating for residuals of a 5th metacarpal fracture have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5156, 5227, 5230 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  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.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified in December 2008 of the criteria for establishing an increased evaluation, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  These letters accordingly addressed all notice elements and predated the initial adjudication by the Roanoke, Virginia RO in March 2009.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  Nothing more is required in this case.

Further, the Veteran's service treatment records have been obtained.  Pertinent post-service medical records have been obtained, to the extent available.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  As such, the Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of any claim decided herein, has been submitted, identified, or remains outstanding, and the duty to assist requirement has been satisfied.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  A VA examination was provided in April 2012 in order to ascertain the current severity of the Veteran's disability.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the VA examination report is adequate, as a thorough review of the file was conducted, and a physical examination provided findings relevant to the issue at hand.  The Veteran's complaints were also considered and discussed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to this issue on appeal has been met.  See 38 C.F.R. § 3.159(c)(4) (2012).    

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Increased Ratings

In this case, the Veteran claims that his currently service-connected residuals of a 5th metacarpal fracture, right hand, are more severe than indicated by his non-compensable evaluation.  The Veteran contends that his disability is so severe that he is almost one-handed.  See Statement, December 2009.

The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  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.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The Court has also held that staged ratings are 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.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with    38 C.F.R. § 4.25 (2012).  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

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 for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012).  When rating a disability of the musculoskeletal system, functional loss due to pain, weakened movement, fatigability, and pain on movement are factors to be considered.  See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).

The Veteran's service-connected residuals of a 5th metacarpal fracture are currently rated under Diagnostic Code 5230.  Per Diagnostic Code 5230, limitation of motion of the little finger is to be non-compensably rated.  Under Diagnostic Code 5227, favorable or unfavorable ankylosis of the finger, or any limitation of motion of the finger, is to be rated noncompensable.  38 C.F.R. § 4.71a.  A compensable rating for a finger disability requires amputation, or the functional equivalent thereof.  See 38 C.F.R. § 4.71a, Diagnostic Code 5156.  With ankylosis, it must also be considered whether an additional evaluation is warranted for resulting limitation of motion of other digits, or for interference with overall function of the hand.  See Note following Diagnostic Code 5227. 

In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis.  See Note (3)(i) preceding 38 C.F.R. § 4.71a, Diagnostic Code 5216.  In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints with either in extension or full flexion or with rotation or angulation of a bone.  Id.  Note (3)(ii) explains that if both the metacarpophalangeal and proximal interphalangeal joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position.  Note (3)(iii) indicates that if only the metacarpophalangeal or proximal interphalangeal joint were ankylosed, and there was a gap of more than 2 inches (5.1 cm.) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis.  In this regard, amputation of the little finger warrants a 10 percent rating without metacarpal resection at the proximal interphalangeal joint, or proximal thereto.  A 20 percent rating is warranted with full metacarpal resection (more than one-half the bone lost).  38 C.F.R. § 4.71a, Diagnostic Code 5156. 

The Veteran underwent a VA examination in conjunction with his claim in January 2009.  At that time, he reported constant pain in the right hand.  At the time of pain, he is able to function with medication.  The Veteran was not in receipt of treatment for his disability, he was never hospitalized, and the residuals have not required surgery.  He complained that it was difficult to write, pick up a sheet of paper, grip a door knob, hold a steering wheel, wash dishes, cook, tie his shoe laces, or fasten buttons.  

On examination, there was no scar.  The gap between the proximal transverse crease of the palm to the right hand little finger was 7 cm.  PIP flexion was to 45 degrees, MIP flexion was to 70 degrees, and DIP flexion was to 20 degrees.  Joint function was additionally limited by pain, weakness, and lack of endurance after repetitive use (with pain as the major functional impact).  The examiner noted that the Veteran exhibited decreased range of motion of the other fingers and thumb due to arthritis, which is not related to this claim.  X-rays of the right hand were abnormal, demonstrating an old, healed fracture of the 5th metacarpal with arthritic changes.  The examiner stated that the Veteran's mobility of the 5th finger was decreased, resulting in the inability to grip.  

An additional VA examination was conducted in April 2012.  The Veteran reported that flare-ups had an impact on hand function, specifically limiting gripping, lifting, and bending of the 5th finger.  Examination revealed limitation of motion of the little finger, though extension was not limited.  There was a gap between the thumb pad and fingers of 1-2 inches, as well as a gap between the little finger and the proximal transverse crease of the palm of one inch or more.  The Veteran was unable to perform repetitive use testing with three repetitions.  Functional loss was noted, as well as weakened movement, excess fatigability, incoordination, pain on movement, and deformity.  Scars were not present.  There was objective evidence of pain on palpation.  There was no ankylosis of the thumb or any finger. The examiner further indicated that there was not functional impartment of such an extremity that no effective function remained other than that which would be equally well-served by an amputation with prosthesis.  

Based on the evidence of record, the Board finds that an initial compensable rating for residuals of a 5th metacarpal fracture disability is not warranted.  As outlined above, the governing criteria provide for a compensable rating for little finger disability only where there is amputation of the finger or equivalent impairment (e.g., extremely unfavorable ankylosis as in the note cited above).  In this case, the little finger is intact, and there is no indication that both the metacarpophalangeal and proximal interphalangeal joints were ankylosed.  While deformity was noted, as well as significant functional limitation, ankylosis has not been demonstrated at any time.  As extremely unfavorable ankylosis is not shown, a compensable rating is not warranted at this time. 

The Board has considered whether an increased disability rating is warranted for the Veteran's residuals of a 5th metacarpal fracture disability based on functional loss due to pain, weakness and flare-ups, pursuant to 38 C.F.R. §§ 4.40 and 4.45, and per the Court's holding in DeLuca.  However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  In this case, the Veteran is receiving a non-compensable rating for finger disability under Diagnostic Code 5230.  This is the maximum rating allowable.  Accordingly, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration. 

In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim.  In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. finger pain and limitation of motion.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have and these types of findings are not readily observable by a layperson.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Furthermore, the Board finds the objective medical findings and opinions provided by the experts of record should be accorded the greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . .  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators . . .").  

The above determination is based upon consideration of applicable rating provisions.  It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012).  The symptoms of his disability have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether any disability on appeal requires the assignment of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

In light of the foregoing, the Board finds that initial, compensable rating is not warranted for residuals of a fracture of the 5th metacarpal, as manifestations of this disability were not shown to meet the criteria for a higher rating under any applicable Diagnostic Code.  As such, the preponderance of the evidence is against the Veteran's claim.  Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim for residuals of a 5th metacarpal fracture, right hand, with degenerative joint disease, must therefore be denied.  


ORDER

Entitlement to a compensable evaluation for residuals of a 5th metacarpal fracture, right hand, with degenerative joint disease, is denied.

____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs