Citation Nr: 1300940 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-08 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable evaluation for residuals of a right ring finger injury, rated as a scar of the right ring finger, prior to May 11, 2011. 2. Entitlement to an evaluation above 10 percent for residuals of a right ring finger injury, rated as a superficial laceration of the right ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger (previously rated as a scar of the right ring finger), from May 11, 2011. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran service connection and a noncompensable initial evaluation for residuals of a right ring finger injury, rated as a scar of the right ring finger, effective March 15, 2006 (the date his claim for VA compensation for this disability was received by VA). The Veteran appeals the rating assigned. In a Board hearing conducted at the RO in May 2011, the Veteran and his spouse presented oral testimony in support of his claim before the undersigned traveling Veterans Law Judge. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. In August 2011, the Board remanded the case to the RO for evidentiary and procedural development. During the pendency of the claim, a November 2012 rating decision awarded the Veteran a 10 percent evaluation for his residuals of a right ring finger injury, which were recharacterized as a superficial laceration of the right ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger, effective May 11, 2011. Thusly, the current issues on appeal are entitlement to an initial compensable evaluation for a scar of the right ring finger for the period between March 15, 2006 to May 10, 2011, and entitlement to an evaluation above 10 percent for a superficial laceration of the right ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger, from May 11, 2011. Consideration must be given regarding whether the case warrants the assignment of separate staged ratings for his service-connected residuals of a right ring finger injury for separate periods of time, from March 15, 2006, to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). Following the RO's latest readjudication of the current claim in November 2012, the case was returned to the Board in December 2012; the Veteran now continues his appeal. FINDINGS OF FACT 1. The Veteran's dominant major upper extremity is his right hand. 2. Prior to May 11, 2011, the scar of the right (major) ring finger, residual of injury, was a well-healed, cosmetically non-disfiguring scar measuring 1.0 centimeters long and 1.0 millimeters wide, which was not manifested by pain, tenderness, or adhesion to underlying tissues, and did not produce any functional loss of the right ring finger. 3. Prior to May 11, 2011, the medical evidence does not objectively establish a definitive clinical link associating the Veteran's complaints of neurological pain and hyperesthesia of the tip of the right ring finger with his service-connected residuals of a right ring finger injury. 4. As of May 11, 2011, the medical evidence objectively establishes a definitive clinical link associating the Veteran's complaints of neurological pain and hyperesthesia of the tip of the right ring finger with his service-connected residuals of a right ring finger injury. 5. From May 11, 2011, the superficial laceration of the right (major) ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger (previously rated as a scar of the right ring finger, residual of injury), is manifested by hypersensitivity and pain to touch, which produces only minimal occupational impact; the overall constellation of symptomatology reflects only mild incomplete paralysis of the major median nerve. CONCLUSIONS OF LAW 1. Prior to May 11, 2011, the criteria for an initial compensable evaluation for a scar of the right (major) ring finger, residual of injury, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). 2. From May 11, 2011, the criteria for an evaluation in excess of 10 percent for a superficial laceration of the right (major) ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger (previously rated as a scar of the right ring finger, residual of injury), have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.118, 4.124a, Diagnostic Code 8715-7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. The Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The claim for a higher initial rating for a right ring finger scar for the time periods at issue flows downstream from a rating decision dated in January 2007, which initially established service connection for this disability, assigning the rating and the effective date. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thusly, any defects in the current appeal of the initial ratings assigned for the right ring finger scar with regard to the statutorily prescribed VCAA notice requirements are deemed to be non-prejudicial to this specific claim. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The Board notes at this juncture that this current appellate decision has determined that an effective date of March 15, 2006, is appropriate for the award of service connection for the Veteran's right ring finger scar. Thus, with respect to the claim for a higher initial evaluations for this disability, consideration must be given regarding whether the case warrants the assignment of separate ratings for separate periods of time, from March 15, 2006, to the present, based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In fact, a staged rating was applied to the current claim, and the matters to be adjudicated by the Board involve the propriety of the ratings assigned prior to and after May 11, 2011, for the right ring finger scar. The Board finds that all relevant and obtainable VA and private medical records pertaining to the Veteran's treatment for his right ring finger scar relevant to the period from March 15, 2006 to the present have been obtained and associated with the evidence. He has furthermore been provided with VA examinations of his right ring finger scar in October 2006 (which include color photographs of the scar) and November 2011. The Board has reviewed the examination reports and notes that the Veteran's claims file was reviewed by the clinicians who performed these examinations. Furthermore, the examiners provided adequate discussion of their clinical observations and a rationale to support their findings and conclusions within the context of the Veteran's clinical history as contained within his claims file. Thus, the October 2006 and November 2011 VA examinations are deemed to be adequate for rating purposes for the claim at issue regarding the propriety of the initial rating assigned for right ring finger injury residuals. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the initial rating claim decided herein, and thus no additional assistance or notification is required. The Veteran has not suffered any prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. 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, 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant 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 law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). 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). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2012). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, in evaluating impairment of the psyche, considering the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that where the appellant has expressed dissatisfaction with the assignment of a rating, separate ratings can be assigned for separate periods of time based on the facts found. Increased ratings, generally. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate diagnostic codes identify the various disabilities. 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 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2012). (a.) Entitlement to an initial compensable evaluation for residuals of a right ring finger injury, rated as a scar of the right ring finger, prior to May 11, 2011. By history, the Veteran's service treatment records reflect that he sustained a laceration injury of his right (dominant) ring finger after it was caught in a trailer hitch. The laceration injury was closed with sutures and healed well. The medical records show no complaints of residual pain or impaired use of the right ring finger or the right upper extremity associated with this injury at the time of the Veteran's separation from active duty in February 1978. The Veteran's original claim for VA compensation for residuals of an injury of his right ring finger was received by VA on March 15, 2006. During VA medical examination of his right ring finger in October 2006, the Veteran reported that he did not re-injure his right ring finger since the in-service injury. He reported developing pain in this digit with paresthesiae approximately 6 - 7 years earlier, but without loss of sensation or coordination. He stated that he avoided using his right ring finger in his work as a letter carrier but that doing so did not impair his ability to perform his work-related duties in this regard. He indicated that his private physician treated his right ring finger complaints by placing the digit in a splint. He also reported occasionally using over-the-counter pain medication (Ibuprofen) to treat his finger pain. Clinical examination in October 2006 revealed that the Veteran's right hand was morphologically similar to his left, without any obvious disfigurement, asymmetry, or muscle atrophy. Close inspection with magnifying glasses revealed a very fine scar on the distal tip of the right ring finger that was 1.0 centimeters long and 1.0 millimeters wide, with no associated nailbed dystrophy, muscle wasting, erythema, drainage, or adherence to the underlying tissues. The scar was described as being barely visible and cosmetically outstanding. Clinical observations revealed fully intact musculature of the right hand, wrist, and digits, with full motion on all ranges of excursion of every digit as well as the right hand and wrist without fatigue or pain even after repetitive testing. X-rays revealed no associated arthritis or other bony abnormality. Although reduced grip strength of the right hand was observed, the examiner expressed the opinion that the clinical evidence did not suggest that the Veteran's complaints of right hand pain with reduced grip strength were related to his right ring finger injury residuals. The Veteran's spouse submitted a written statement dated in March 2007, in which she reported her lay observations that, in pertinent part, the Veteran complained that right hand was physically weaker than his left hand and that he experienced shooting pains in his right hand arm, especially if he bumped it against a hard object. A private physician's note dated in March 2007 from T.S.P., M.D., shows that the Veteran received treatment for complaints of shooting pain, paresthesias, and tingling sensation in his right ring finger that reportedly began in 1976 after an injury to this digit in service. Dr. T.S.P.'s commentary was that "[The Veteran's] symptoms are suggestive of distal nerve supersensitivity with superimposed perhaps repetitive stress injury of forearm." Prior to May 11, 2011, the left hand scar was rated under the criteria contained in 38 C.F.R. § 4.118, Diagnostic Code 7804, which provides for the assignment of a 10 percent evaluation for one or more scars that are unstable or painful. This is the appropriate Diagnostic Code to apply, given the facts of the case and state of the disability at the time. Applying the relevant rating criteria to the facts of the case, the Board finds that the Veteran's service-connected right ring finger scar was not manifested by compensably disabling symptoms at any time prior to May 11, 2011. Although neurological pain and paresthesiae were reported, the medical opinion presented at the October 2006 VA examination did not objectively associate these symptoms with the service-connected residuals of a right ring finger injury, nor did the commentary of the Veteran's private physician, Dr. T.S.P., during treatment for the same in March 2007. Although the Veteran's spouse is competent to report her observations of what the Veteran reported as his pain symptoms affecting his right upper extremity and ring finger (see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)), as a layperson she is not competent to attribute these reported symptoms as residuals of his service-connected ring finger injury. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Similarly, the Veteran is competent to testify to experiencing these same aforementioned symptoms, as he did at a hearing before the undersigned Veterans Law Judge on May 9, 2011. (Jandreau, supra.) However, as neither the claimant nor his spouse are clinicians, they lack the training, accreditation and competence to present diagnoses, commentary, and opinion on matters of medical causation or etiology; as such, their statements are not afforded any probative weight towards linking the reported pain and weakness affecting the Veteran's right upper extremity with his service-connected right ring finger injury residuals. (Espiritu, supra.) In view of the above discussion, as there is no clinical evidence that objectively attributes the Veteran's complaints of right upper extremity pain to his residuals of a right ring finger injury prior to May 11, 2011, the Board is thusly restricted from considering these symptoms to rate the Veteran's injury residuals for the period prior to May 11, 2011. In the absence of a credible and objective demonstration of pain, tenderness, and functional impairment exhibited by the Veteran's service-connected right ring finger scar prior to May 11, 2011, there is no basis to award a compensable evaluation under the applicable rating code. The appeal in this regard is therefore denied. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (b.) Entitlement to an evaluation above 10 percent for residuals of a right ring finger injury, rated as a superficial laceration of the right ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger (previously rated as a scar of the right ring finger), from May 11, 2011. A private medical note dated May 11, 2011, from Dr. T.S.P., reflects that the Veteran complained of intermittent shooting pain and paresthesias of his right ring finger that Dr. T.S.P. found to be suggestive of a hyperalgesic response caused by sensitization of the peripheral nociceptors (distal nerve supersensitivity), status post injury to the right ring finger. A subsequent report of VA examination conducted in November 2011 shows that the right ring finger scar was stable, well-healed, and barely visible on clinical inspection. The examining physician determined that the Veteran's scar, by itself, had no actual impact on his ability to perform work. X-rays revealed no underlying bony pathology and physical examination did not reveal any muscle atrophy. The examiner conclusively determined that the Veteran's service-connected scar and residuals of a right ring finger injury were associated with, and manifested by hyperesthesia and hypersensitivity to very light touch on the tip of the affected finger, with immediate onset of pain on impact or contact with any object. The examiner determined that the pain would last from 3 -4 minutes and that its direct impact on the Veteran occupation was that it made his job as a letter carrier "irksome but doable." Otherwise, the examiner deemed the Veteran to be "fully capable of resuming work." The clinical evidence demonstrates that the neurological symptoms now associated with the Veteran's right ring finger injury residuals constitute neuralgia that affects the median nerve of his right (major) upper extremity. Therefore, the applicable rating criteria to rate his neurological manifestations of his service-connected residuals of a right ring finger injury are in 38 C.F.R. § 4.124a, Diagnostic Code 8715, which provides for the assignment of a 10 percent evaluation for symptoms representing mild incomplete paralysis of the major median nerve. Assignment of a 30 percent evaluation is warranted for symptoms representing moderate incomplete paralysis of the major median nerve. Assignment of a 50 percent evaluation is warranted for symptoms representing severe incomplete paralysis of the major median nerve. Assignment of a 70 percent evaluation is warranted for symptoms representing complete paralysis of the major median nerve, manifested by the had 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, inability to 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. See 38 C.F.R. § 4.124a, Diagnostic Code 8715. The Board has considered the evidence pertinent to that state of the Veteran's service connected residuals of a right (major) ring finger injury for the period as of May 11, 2011. Objectively, the clinical evidence demonstrates that the superficial laceration of the right ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger, is manifested by hypersensitivity and pain to touch, which produces only minimal occupational impact as demonstrated by the November 2011 VA physician's opinion that the scar itself did not produce occupational impairment and that the neurological sensitivity and distal pain of the affected digit made his job as a letter carrier "irksome but doable," but that he was otherwise deemed to be "fully capable of resuming work." The disability picture presented by the evidence demonstrates an overall constellation of symptomatology that reflects no more than mild incomplete paralysis of the major median nerve. As such, the 10 percent evaluation assigned as of May 11, 2011, is appropriate and the claim for a rating increase above 10 percent must therefore be denied. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes at this juncture that it would not be appropriate to rate the Veteran's service-connected residuals of a right ring finger injury under both the criteria for scars in Diagnostic Code 7804 and the criteria for major median nerve impairment in Diagnostic Code 8715, as evaluation of the same disability under various diagnoses constitutes pyramiding, which is proscribed by 38 C.F.R. § 4.14 (2012). (c.) Extraschedular consideration The Board finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected residuals of a right ring finger injury, 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 at any time during the pendency of the claim. The clinical evidence establishes that the Veteran's service-connected injury residuals do not produce a greater impact on his occupational capacity that renders impractical the criteria contemplated by the applicable rating schedule as contained in Diagnostic Codes 7804 or 8715. The clinical evidence indicates that the Veteran is currently employed as a letter carrier. The VA clinician who conducted the November 2011 examination determined that the Veteran's injury residuals imposed only mild occupational impact. Thusly, the Board finds that the Veteran's level of occupational impairment due solely to symptoms associated with his service-connected residuals of a right ring finger injury is well within the scope of the noncompensable evaluation assigned to it prior to May 11, 2011, and the 10 percent evaluation currently assigned to it as of May 11, 2011, based on Diagnostic Codes 7804 and 8715 of the rating schedule, and that the injury residuals do not present a disability picture that renders the applicable rating schedule inadequate to rate the disability at issue under the specific facts unique to this individual case. Furthermore, the clinical evidence does not indicate that the Veteran's residuals of a right ring finger injury requires hospitalization, much less treatment through frequent hospitalizations. The clinical evidence demonstrates that the level of industrial impairment individually attributable solely to the service-connected residuals of a right ring finger injury is adequately contemplated in the criteria of the applicable rating schedule. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board is not required to discuss the possible application of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2012). See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993). [Continued On Next Page] ORDER An initial compensable evaluation for residuals of a right ring finger injury, rated as a scar of the right ring finger, for the period prior to May 11, 2011 is denied. An evaluation above 10 percent for residuals of a right ring finger injury, rated as a superficial laceration of the right ring finger, palmar surface of distal digit, with hyperesthesia of the tip of the right ring finger (previously rated as a scar of the right ring finger), for the period from May 11, 2011 is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs