Citation Nr: 1301337 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-30 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a left index finger condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania, which granted service connection for residuals of an injury to the left index finger and assigned a 10 percent evaluation effective March 27, 2007. FINDINGS OF FACT 1. The Veteran's left index finger disability is manifested by limitation of the range of motion of the left index finger, but the record contains no evidence of ankylosis or amputation. 2. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected left index finger disability is inadequate. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for the Veteran's left index finger disability have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5153, 5225, 5229 (2012). 2. The criteria for referral of the Veteran's disability for consideration on an extra-schedular basis are not met. See 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran as to the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). The VCAA requires VA to notify the veteran and the veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA must specifically inform the veteran and the veteran's representative, if any, of which portion, if any, of the evidence is to be provided by the veteran and which part, if any, VA will attempt to obtain on behalf of the veteran. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting that a letter from VA to the veteran that described evidence potentially helpful to the veteran but that did not specify the party responsible for obtaining such evidence did not meet the standard set forth in the VCAA). After reviewing the record, the Board concludes that the notice requirements of the VCAA have been satisfied. The April 2007 VCAA letter notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In that same correspondence, the RO additionally notified the Veteran of the process by which initial disability ratings and effective dates are established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that there exists any evidence that could be obtained which would have an effect on the outcome of this case; therefore no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (finding that VCAA notice is not required where there is no reasonable possibility that additional development will aid the veteran). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured, including VA examination reports and VA medical center treatment records. The Veteran was provided with a VA examination in March 2008. The report of this examination indicates that the examiner reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The findings contained in the examination reports are sufficient to rate the Veteran's finger disability under the applicable rating criteria. In August 2009, the Veteran requested a hearing before a Veterans Law Judge. In August 2010, the Veteran indicated that he no longer wanted such a hearing. The Veteran's request for a Board hearing has been successfully withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board observes that all due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Increased Rating - Left Index Finger Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The 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). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40 (2012). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In the instant case, the Veteran's left index finger condition is rated under 38 C.F.R. 4.71a, Diagnostic Code 5299-5229. Diagnostic Code 5299 is used to identify musculoskeletal disorders that are not specifically listed in the schedule, but that are instead rated by analogy to similar disabilities under the 38 C.F.R. § 4.71a. See 38 C.F.R. §§ 4.20, 4.27 (2012). In this regard, hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2012). Here, the Veteran's left index finger condition is rated as analogous to limited motion of the index finger. The Board will leave aside any discussion of whether the award of service connection under this diagnostic code represents pyramiding with the other diagnostic codes assigned to the Veteran, and it will instead focus solely on whether an evaluation in excess of 10 percent is available to the Veteran for his left index finger disability. A higher evaluation under the currently-assigned diagnostic code 5229 is unavailable to the Veteran because he is already in receipt of the maximum 10 percent evaluation. A higher evaluation is under the diagnostic code applicable to ankylosis (immobility) of the index finger because 10 percent is also the maximum rating under that diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5225 (2012). A rating in excess of 10 percent is available only based on amputation of the index finger, and the Board observes that the record contains no evidence of amputation of the index finger. The Veteran's March 2008 VA examination does not indicate that the Veteran's left index finger had been amputated, nor do any other records indicate this. The Board has considered whether an increased disability rating is warranted for the Veteran's left index finger disability based on functional loss due to pain, weakness, excess fatigability, incoordination, and flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). If, however, as in the instant case, the veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider the applicability of the above provisions. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Accordingly, an initial disability rating in excess of 10 percent is not available for the Veteran's left index finger disability. The Board further finds that there have been no distinct periods during the relevant time period in which the Veteran's condition was more or less severe than stated above. He is accordingly not entitled to receive a "staged" rating for his left index finger condition. See Fenderson. Extra-Schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. While higher ratings are unavailable for the Veteran's left index finger disability, the symptoms associated with his disability are fully encompassed by the available rating criteria. In other words, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The Veteran does not have any symptoms from his service-connected left index finger condition that are unusual or are different from those contemplated by the schedular criteria. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, supra. The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In the instant case, however, the Veteran has not explicitly raised the issue of TDIU. At the time of his March 2008 examination, the Veteran was employed as a medical supply technician. In light of the foregoing, the Board finds that entitlement to a TDIU has not been raised. ORDER An initial disability rating in excess of 10 percent for a left index finger condition is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs