Citation Nr: 1302289	
Decision Date: 01/22/13    Archive Date: 01/31/13

DOCKET NO.  10-21 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for bronchitis.

2.  Entitlement to service connection for residuals of a contusion of the right hand.

3.  Entitlement to service connection for a right foot disorder.

4.  Entitlement to service connection for bilateral corneal abrasions.

5.  Entitlement to service connection for pseudofolliculitis barbae.

6.  Entitlement to service connection for sinusitis.

7.  Entitlement to service connection for hypertension.

8.  Entitlement to an initial rating in excess of 0 percent for residuals of a fracture of the fourth digit, left hand.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel


INTRODUCTION

The Veteran served on active duty from February 1984 to February 1988, and reported subsequent National Guard service.

These matters come before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran testified before the undersigned Veterans Law Judge in July 2011.  A copy of the transcript of this hearing has been associated with the claims file.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.



FINDINGS OF FACT

1.  At his July 2011 Board hearing, which was prior to the promulgation of a decision in the appeal, the Appellant withdrew his claims for entitlement to service connection for bronchitis and residuals of a contusion of the right hand.

2.  A right foot disability, residual disability from bilateral corneal abrasions, pseudofolliculitis barbae, and sinusitis are not currently demonstrated in the record.

3.  Hypertension is not currently demonstrated in the record and was not manifested to a compensable degree within one year of service.

4.  The Veteran's residuals of a left fourth (ring) finger fracture do not manifest with ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, and the Veteran's finger is intact.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal on the issues of entitlement to service connection for bronchitis and residuals of a contusion of the right hand have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

2.  A right foot disability, residual disability from bilateral corneal abrasions, pseudofolliculitis barbae, and sinusitis were not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).

3.  Hypertension was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).

4.  The criteria for an initial compensable rating for residuals of a left 4th (ring) finger 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 FINDINGS AND CONCLUSIONS

I. Withdrawn Appeals

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.

At his July 2011 hearing before the Board, the Veteran and his representative requested to withdraw the appeal as to the issues of entitlement to service connection for bronchitis and residuals of a contusion of the right hand.  See Board Hearing Transcript (T.) at 17.  The Board finds that the testimony of the Veteran and his representative indicating his intention to withdraw the appeals as to these issues, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).  The Veteran has withdrawn his appeal regarding these issues, and, hence, there remains no allegation of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal, and the issues of entitlement to service connection for bronchitis and residuals of a contusion of the right hand are dismissed.

II.  VCAA

Before addressing the merits of the remaining issues 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).  These notice requirements apply to all five elements of a service-connection claim (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).  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 via letter dated in February 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in May 2009.  Nothing more was required.

With respect to the earlier effective date claim, the Veteran's claim arises from his disagreement with the initial effective date assigned following a grant of compensation benefits.  Courts have held that once a claim for benefits is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist a veteran in the development of the claims.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained service treatment records (STRs).  Moreover, the record was held open, following the July 2011 Board Hearing to enable the Veteran the opportunity to obtain private treatment records.  No records were submitted.

The Veteran has been afforded a hearing before the undersigned Veterans Law Judge (VLJ) in July 2011 when he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.

Here, during the July 2011 Board Hearing, the VLJ identified the issues on appeal.  See Board T. at 2.  Questions were asked with respect to whether the Veteran had diagnoses, post-service treatment, and nexus evidence (which would indicate a link between a current disorder and service) regarding his disorders, as well as the basis for his claims.  She was advised of the need to present evidence of a current disability.  See Board T. at 10.  Moreover, testimony was taken regarding the Veteran's assertions that a higher rating is warranted for his left fourth (ring) finger disability.  As noted above, the record was held open so that additional evidence could be submitted.  The Veteran failed to submit additional records, nor did he indicate that he needed assistance obtaining any records.  The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Next, the Board acknowledges that VA medical examinations were not provided with respect to his right foot, sinusitis, or hypertension claims.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a appellant's claim for benefits, there are four factors for consideration:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the appellant's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

In deciding to remand an issue for a medical nexus opinion, the Board notes that the Federal Circuit, in a recent decision, upheld the determination that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by a appellant, in which case an examination may not be required).

The Board concludes that a VA examination is not needed to address these claims.  In light of the absence of in-service evidence of chronic right foot problems or hypertension, and given only one diagnosis of sinusitis (and one diagnosis of "possible" sinusitis) in service; and in light of the absence of a current diagnosis of a right foot disability, hypertension, or sinusitis, a remand for a VA examination and opinion, on any of these issues, would unduly delay resolution.

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

III.  Analysis

A.  Service connection claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A review of the Veteran's STRs shows assessments of right foot soft tissue injury in April 1987; an assessment of corneal abrasion in the left eye in May 1986 with possible post-traumatic iritis in July 1986; an assessment of right eye corneal abrasion in June 1986; numerous assessments of pseudofolliculitis barbae described as mild to moderate-severe dated in September, October and December 1986 and February and March 1987; an assessment of possible sinusitis in April 1987 and a diagnosis of sinusitis in May 1987.  

This evidence notwithstanding, the Veteran fails to meet the preliminary requirement for service connection, namely showing of a current disability.  Fundamental to the claim is that the Veteran first has to establish he has a chronic disability.  In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists].  A "current disability" means a disability shown by competent medical evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).  In this case, as will be discussed, there is no competent and credible evidence showing that the Veteran presently suffers from a chronic right foot disability, chronic residuals of bilateral corneal abrasions, pseudofolliculitis barbae, sinusitis, or hypertension, irrespective of his in-service history.

With respect to the bilateral corneal abrasions and pseudofolliculitis barbae claims, the most probative medical evidence of record comes from his VA examination reports during the course of his appeal, since the time he filed his claim in February 2009.  

Notably, February 2010 VA examinations revealed negative findings as to pseudofolliculitis barbae and residuals of the corneal abrasions in service.  Given the VA examiners' review of the claims file, consideration of the Veteran's reported history, physical examination, and conclusions that he "has no sequelae or scarring from [the in-service] corneal abrasions" and that there was "[n]o evidence of pseudofolliculitis barbae at this time" and "no evidence of scabbing from resolving papules or pustules," the Board finds the February 2010 VA examiners' opinions are highly probative evidence against the pseudofolliculitis barbae and residuals of corneal abrasions claims.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").

Since the time the Veteran filed his claim in February 2009 and/or at any time during the pendency of the appeal, there has simply been no diagnosis of record of any chronic right foot disability, any chronic disability due to the corneal abrasions in service, pseudofolliculitis barbae, any chronic sinus disability, or hypertension for which service connection may be established.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability).  See, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Overall, the totality of the probative medical evidence weighs against the possibility that he presently has a chronic right foot disability, any chronic disability due to the corneal abrasions in service, pseudofolliculitis barbae, any chronic sinus disability, or hypertension.  See also Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Board acknowledges that the Veteran is competent to have experienced and observed a continuity of symptoms since service.  He testified that although he had not sought medical treatment since service, his right foot is painful and swells approximately four times per month (see Board T. at 8); his sinusitis has continued since service, worsening in the winter months, and he treats the problem with over the counter medication (see Board T. at 14); and his eyes are blurry and tear and he has needed glasses since 1993 (see Board T. at 19-20).  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  Still, he is not competent to ascribe these symptoms to a particular diagnosis or attribute his current symptoms to his active duty service; nor may the Veteran otherwise enunciate that the claimed symptoms represent a current disability for which service-connected disability benefits may be awarded.  In this respect, to the extent the Veteran may experience symptom of pain or discomfort, the Board notes that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).   

The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for medical conditions.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.  
 
Rather, specialized medical expertise, such as in otolaryngology, and physical evaluation are required to diagnose a chronic sinus disability such as sinusitis.  Likewise, a lay person is not capable of diagnosing his claimed orthopedic, cardiovascular, dermatological, or ophthalmological disabilities.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis); but see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (clarifying that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and service or a service-connected disability).  The Board finds he is not competent to self-diagnose his claimed chronic sinus disability, or hypertension, pseudofolliculitis barbae, a right foot disorder and residuals of bilateral corneal abrasions.

Moreover, and while not dispositive, the Board emphasizes the multi-year gap between discharge from active duty service (1988) and initial reported symptoms and diagnosis in 2009, over 20 years after service separation.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service").  The Veteran has provided no explanation as to why he delayed filing a claim for over 20 years.  See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).

Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value.  See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  Any account reporting continuous manifestation of right foot, eye, pseudofolliculitis barbae, sinus, or hypertension symptoms since service is self-serving.  Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements).

Because there is no diagnosis of a current chronic right foot disability, any chronic disability due to the corneal abrasions in service, pseudofolliculitis barbae, any chronic sinus disability, or hypertension, or other competent and credible evidence the Veteran has any of these conditions, there is no possible means of attributing these non-existent conditions to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Next, the Board has considered whether presumptive service connection for hypertension as a chronic disease is warranted.  Under 38 C.F.R. § 3.309(a), cardiovascular-renal disease, including hypertension, is regarded as a chronic disease.  However, in order to trigger the presumption, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service.  See 38 C.F.R. § 3.307(a)(3) (2012).  While the Veteran reported that he was diagnosed with hypertension since service, As discussed above, the evidence does not show a current diagnosis of hypertension, much less a manifestation of hypertension to a degree of 10 percent or more (diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control) within one year of his separation from service.  The criteria for presumptive service connection on the basis of a chronic disease have not been satisfied.

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

B.  Initial Rating Claim

In this case, the Veteran claims that his currently service-connected residuals of a left 4th finger fracture are more severe than indicated by his non-compensable evaluation.  The Veteran contends that his finger swells and locks up at times so he cannot bend it.  See Board T. at 3-6.

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).  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.  

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 left 4th finger fracture are currently rated under Diagnostic Code 5230.  Per Diagnostic Code 5230, limitation of motion of the ring finger is to be non-compensably rated.  A compensable rating for a 4th finger disability requires amputation, or the functional equivalent thereof.  See 38 C.F.R. § 4.71a, Diagnostic Code 5155.  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 either in extension or full flexion.  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 ring 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 5155. 

The Veteran underwent a VA examination in conjunction with his claim in February 2010.  At that time, he reported catching and pain in the proximal interphalangeal joint of the ring finger.  Examination revealed full, pain-free range of motion of all joints of the left hand.  There was no tenderness, and arthritis was not found on X-ray.  The examiner concluded that the "symptoms [described by the Veteran] are not related to this [in-service] remote fracture."  On examination, which included X-ray, the examiner noted that the Veteran had sustained an avulsion fracture of the base of the distal phalanx of the ring finger in service.  The examiner noted that the Veteran's current complaints concerned the joint proximal to the joint that was injured in service.    

Based on the evidence of record, the Board finds that a compensable rating for residuals of a 4th finger fracture is not warranted at any time during this appeal.  As outlined above, the governing criteria provide for a compensable rating for ring 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 ring finger is intact, and there is no indication that both the metacarpophalangeal and proximal interphalangeal joints were ankylosed.  In fact, the examiner specifically found that the Veteran's complaints were unrelated to the in-service ring finger fracture, and 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 a higher disability rating is warranted for the Veteran's residuals of a 4th finger fracture 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.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  Furthermore, the Board finds the objective medical findings and opinions provided by the expert 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).  The reported symptoms of catching and pain in the proximal joint to that which was injured in service have been determined by the medical evidence to be unrelated to his service-connected left 4th finger fracture.  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 an initial, compensable rating is not warranted for residuals of a fracture of the left 4th finger 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 4th finger fracture, left hand, must therefore be denied.  


ORDER

The claims for entitlement to service connection for bronchitis and residuals of a contusion of the right hand are dismissed without prejudice.

Service connection for a chronic right foot disability, a chronic disability due to corneal abrasions in service, pseudofolliculitis barbae, any chronic sinus disability, and hypertension, is denied.

Entitlement to a compensable evaluation for residuals of a left 4th (ring) finger fracture is denied.



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



Department of Veterans Affairs