Citation Nr: 1302048 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-28 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial compensable rating for right thumb flexor tendonitis. 2. Entitlement to an initial compensable rating for sinusitis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November 2003 to January 2008. He is the recipient of the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The April 2008 rating decision also denied service connection for posttraumatic stress disorder and shin splints; however, a November 2010 rating decision granted service connection for such disabilities. Therefore, these issues are no longer before the Board. While additional evidence was received in January 2011, after the issuance of the December 2010 supplemental statement of the case, in the form of a July 2009 Post Deployment Health Re-Assessment that was not reviewed by the RO or accompanied by a waiver of such a review from the Veteran, it is not pertinent to the right thumb disability. See 38 C.F.R. § 20.1304(c) (2012). Therefore, there is no prejudice to him in the Board proceeding with a decision on such issue. While it does address sinusitis, such claim is being remanded and, therefore, the agency of original jurisdiction (AOJ) will have an opportunity to review it upon readjudication. The issue of entitlement to an initial compensable rating for sinusitis addressed in the REMAND portion of the decision below requires additional development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period, right thumb flexor tendonitis is manifested by objective evidence of pain on motion; decreased strength for pushing, pulling, and twisting; and repetitious fine movement of the right hand and fingers produces swelling and pain, resulting in functional loss that most nearly approximates a gap of one to two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for right thumb flexor tendonitis are met. 38 U.S.C.A. §§ 1155, 5102, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5024-5228 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Board observes that the Veteran has filed an appeal with respect to the propriety of the initial rating assigned rating for his right thumb flexor tendonitis from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for right thumb flexor tendonitis was granted and an initial rating was assigned in the April 2008 rating decision on appeal. Therefore, as the issue adjudicated in the decision below is with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records have been obtained and considered. Veteran himself stated in a December 2007 VCAA notice response that he had no other information or evidence to substantiate his claim. The Board notes that the Veteran was afforded a VA examination in December 2009 in connection with his claim for a higher initial rating for right thumb flexor tendonitis. This examination is adequate to evaluate the Veteran's right thumb disability as it included an interview with the Veteran, a review of the record, and a full physical examination addressing the relevant rating criteria. The Board acknowledges that the December 2009 VA examination was conducted over three years ago; however, the Veteran has not alleged worsening since the such VA examination. In this regard, while he and his representative have claimed that his right thumb disability is more severe than the current noncompensable rating, they have not contended that the condition has increased in severity since the December 2009 VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time not a basis for requiring of new examination). Therefore, the Board finds that the December 2009 VA examination report is adequate to adjudicate the Veteran's claim for a higher initial rating for right thumb flexor tendonitis and no further examination with respect to this claim is necessary. Given the actions outlined above, the Board finds that VA has fully satisfied the duty to assist with respect to the claim adjudicated below, and that additional efforts to assist or notify the Veteran with respect to this claim in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case with respect to the claim for a higher initial rating for rating for right thumb flexor tendonitis, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of this claim. II. Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. 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. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca, supra. The basis of disability evaluation 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. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran's right thumb flexor tendonitis is currently evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.71a, DCs 5024-5228. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that tenosynovitis under Diagnostic Code 5024 is the service-connected disorder and limitation of motion of the thumb under Diagnostic Code 5228 is a residual condition. Under DC 5024, tenosynovitis is rated on the basis of limitation of motion of the affected part as degenerative arthritis. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. As such, the Veteran's tendonitis of the right (major) thumb is evaluated under DC 5228, which pertains to limitation of motion of the thumb. For the major or minor thumb, DC 5228 provides for a noncompensable rating for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 10 percent rating is warranted when the gap is one to two inches (2.5 to 5.1 cm) and 20 percent when the gap is more than two inches (5.1 cm). 38 C.F.R. § 4.71a, DC 5228. During service, the Veteran was involved in an accident in July 2006 wherein he was injured during pugil stick training and sustained a blow to the middle of the first metacarpal. He complained about residual pain one month thereafter in the first metacarpal of the right hand during abduction of the right thumb. X-rays were negative for fractures or dislocations. The impression was right hand tendonitis and conservative treatment with reset, Ibuprofen, and physical therapy was said to have failed. The October 2007 separation examination noted an impression of De Quervain tenosynovitis for which the Veteran had undergone physical therapy. At the December 2009 VA examination, the Veteran reported that the pain in his right thumb had continued since service and had become progressively worse. The medical history included decreased strength and dexterity in the right hand and weekly flare-ups of moderate pain lasting one to two days that required time for swelling and pain to subside. Physical examination findings included motion in the right thumb upon attempting to oppose the fingers that resulted in no gap between the thumb and fingers that was accompanied by objective evidence of pain. Repetitive motion resulted in objective evidence of pain, but no additional limitation of motion. There was no ankylosis or deformity of a digit, but there was decreased strength for pushing, pulling, and twisting. The examiner noted that repetitious fine movement of the right hand and fingers resulted in swelling and pain and that the right thumb disability resulted in impairment of daily activities, with mild effects on shopping, eating, bathing, dressing, toileting, and grooming and severe effects on recreation. The right thumb disability was also said to prevent exercise. Based on the evidence as set forth above, the Board finds that the Veteran is entitled to an initial 10 percent rating as there is objective evidence of pain on motion; decreased strength for pushing, pulling, and twisting; and repetitious fine movement of the right hand and fingers produces swelling and pain, resulting in functional loss that most nearly approximates a gap of one to two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.45; DeLuca, supra, Burton, supra, Mitchell, supra. Specifically, the evidence reflects that the Veteran's right thumb disability results in functional loss, as the evidence shows that the Veteran has increased pain and swelling during flare-ups or repetitive motion. The right thumb disability has also been shown upon examination to result in decreased strength for pushing, pulling, and twisting and to affect daily activities. In short, all reasonable doubt has been resolved in the Veteran's favor in concluding that an initial 10 percent rating, but no higher, is warranted for his right thumb disability. However, the Board finds that a rating in excess of 10 percent is not warranted as the evidence does not show that the Veteran's right thumb disability results in functional loss more nearly approximating a gap is more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In this regard, while the Veteran does experience some functional loss as previously discussed, there was no gap between the thumb and fingers on range of motion testing and, while such was accompanied by pain, there was no additional limitation of motion on repetitive testing. Furthermore, while there was flare-ups of moderate pain, decreased strength and dexterity of the right hand, and repetitious fine movements resulted in swelling and pain, there was no ankylosis or deformity of a digit, and the impact on the Veteran's usually daily activities were generally mild in nature. Therefore, the Board finds that his right thumb disability does not more nearly approximate the criteria necessary for a 20 percent rating. The Board has carefully considered the Veteran's contentions, and notes that his lay testimony is competent to describe certain symptoms associated with the right thumb. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and is contemplated by the 10 percent disability rating found to be warranted in this decision. Specifically, the Veteran's competent subjective complaints of pain, swelling, and decreased strength and dexterity are specifically contemplated in the 10 percent rating awarded herein. However, with respect to the range of motion testing, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal as such is accomplished by the administration and interpretation of specialized testing. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the pathology. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right thumb disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right thumb disability with the established criteria found in the rating schedule. The Board finds that the Veteran's right thumb symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the 10 percent rating assigned herein contemplates the functional loss resulting from objective evidence of pain on motion; decreased strength for pushing, pulling, and twisting; and repetitious fine movement of the right hand and fingers that produces swelling and pain. There are no additional symptoms of his right thumb disability that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology associated with his service-connected right thumb disability. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the December 2009 VA examination reflects that the Veteran was a full-time student and he has not alleged that he was unemployable during the course of the appeal. Therefore, as the record does not suggest, and the Veteran does not allege, that his service-connected right thumb disability has rendered him unemployable, a claim for a TDUI is not raised and need not be further addressed. In sum, the Board finds that the Veteran is entitled to an initial rating of 10 percent, but no higher, for right thumb flexor tendonitis. In denying an initial rating in excess of 10 percent, the Board finds that the preponderance of the evidence is against the Veteran's claim and, as such, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating of 10 percent, but no higher, for right thumb flexor tendonitis is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND The Veteran's representative contended in January 2011 and January 2013 submissions that the Veteran has not been provided an adequate VA examination to determine the severity of his service-connected sinusitis. Unfortunately, the Veteran's representative's assertions as to the adequacy of the November 2009 VA general medical examination, which only tangentially addressed the Veteran's sinusitis, are correct. As such, the Board finds that, on remand, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected sinusitis. Additionally, while on remand, the Veteran should be given an opportunity to identify any medical provider who has treated him for sinusitis. Thereafter, the AOJ should obtain any identified treatment records for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with an opportunity to identify any medical provider who has treated him for sinusitis. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be scheduled for a VA examination to determine the severity of his service-connected sinusitis. Prior to the examination, the claims folder must be made available to the examiner conducting the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies are to be performed. The examiner should state the number of incapacitating episodes [bed rest and treatment by a physician] per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment OR the number of non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. If sinusitis is accompanied by headaches, the examiner should report the severity and duration of such activities. The examiner should also describe the impact that the Veteran's sinusitis has on his employability. Any opinion expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the December 2010 supplemental statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs