Citation Nr: 1303480 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-28 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable rating for osteoarthritis of the little finger of the right hand with ankylosis at the distal interphalangeal joint (claimed as a pinky finger condition). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to February 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and Roanoke, Virginia. Jurisdiction currently resides with the RO in Roanoke, Virginia. FINDING OF FACT The Veteran's service-connected right little finger disability is manifested by ankylosis, and noncompensable limitation of motion of the right little finger; the disability has required pain medication and use of a hand brace, is productive of actual industrial impairment, and results in interference with overall function of the right hand, including reduction in grip strength. Such manifestations are analogous to traumatic arthritis of 2 or more groups of minor joints with noncompensable limitation of motion. CONCLUSION OF LAW The criteria for a 10 percent initial disability rating, but no more, for osteoarthritis of the little finger of the right hand with ankylosis at the distal interphalangeal joint have been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.405-4.46, 4.71a, Diagnostic Codes 5003, 5010, 5227, 5230 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of prejudice. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. The RO also assisted the Veteran in substantiating his claims by affording him VA examinations, and there is no evidence or contention that there has been a change in the disabilities since the last examination in August 2010. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2012). 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's service-connected left fourth finger disability is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5227, which pertains to metacarpal disabilities. Specifically, Diagnostic Code 5227 provides the rating criteria for unfavorable or favorable ankylosis of the ring or little finger. See 38 C.F.R. § 4.71a, Diagnostic Code 5227. Favorable or unfavorable ankylosis of the ring or little finger or any limitation of motion of the ring or little finger is to be rated noncompensable. 38 C.F.R. § 4.71a, Diagnostic Codes 5227, 5230. 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 (MCP) and proximal interphalangeal (PIP) joints with either in extension or full flexion or with rotation or angulation of a bone. Id. Note (3)(ii) explains that, if both the metacarpophalangeal and proximal interphalangeal joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position. Note (3)(iii) indicates that if only the metacarpophalangeal or proximal interphalangeal joint were ankylosed and there was a gap of more than 2 inches (5.1 cm.) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis. In this regard, amputation of the little finger warrants a 10 percent rating without metacarpal resection at the proximal interphalangeal joint, or proximal thereto. A 20 percent rating is warranted with full metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a, Diagnostic Code 5155. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative hypertrophic arthritis or osteoarthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.) if the limitation of range of motion is compensable. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups such a condition is rated as 10 percent disabling. Such a condition is to be rated as 20 percent disabling if there is x-ray evidence of involvement of 2 or more major joints, or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 further provides that the 20 percent and 10 percent ratings based on x-ray findings discussed above will not be combined with ratings based on limitation of motion and that the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. 38 C.F.R. § 4.45(f) pertains to pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems and 38 C.F.R. §§ 4.40, 4.45 and 4.59 require consideration of functional disability due to arthritis, weakened movement, excess fatigability, incoordination, pain on movement, or flare-ups. These requirements enable the VA to make a more precise evaluation of the level of disability and of any changes in the condition. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In determining a rating for a musculoskeletal disability, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and, the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995); Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). Analysis Service treatment records show that the Veteran sustained an avulsion fracture to the "dorsal aspect proximal end distal phalanx with no separate fragment" of the right hand. The Veteran was afforded a VA examination in December 2007, in response to his claim for service connection. The Veteran reported that he was not able to use his right fifth finger, and complained of limited range of motion and tenderness at the tip of the right little finger. He has also reported that he experiences pain when attempting to twist his washcloth, shaking hands, and picking up items in the kitchen, such as pots and pans, and claimed that the pain radiated down his right fifth finger and into the right hypothenar aspects of his hand. The Veteran also reported that the pain in his finger was relieved with rest, a hand brace, and Tylenol. On physical examination, there was evidence of limited range of motion, to include ankylosis, of the distal interphalangeal joint (DIP) of the right little finger, but the Veteran demonstrated essentially normal range of motion of the proximal interphalangeal joint (PIP), and essentially normal range of motion in all his other fingers. The examiner noted that the range of motion of the little finger was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. However, he did note that the Veteran's hand grip was slightly reduced in the right hand due to his reluctance to apply pressure to the right fifth finger. X-rays of the right hand submitted after the examination revealed osteoarthritic changes in the interphalangeal (IP) joints of the fingers, particularly the DIP joint of the little finger. In a January 2008 rating decision, the RO granted service connection for osteoarthritis of the little finger of the right hand with ankylosis at the distal interphalangeal joint (claimed as a right pinky finger condition). A noncompensable evaluation was assigned, effective May 10, 2007. The Veteran filed a notice of disagreement in March 2008, and in subsequently issued July 2008 and August 2008 rating decisions, the RO continued the noncompensable evaluation for his service-connected right little finger disability. The Veteran continued to appeal the noncompensable evaluation assigned for his right little finger disability, and in response, he was afforded another VA examination in August 2010. The Veteran complained of aching pain in the right pinky joint, exacerbated by physical activity, and relieved by rest. He reported that he had difficulty tying shoelaces, fastening buttons, picking up pieces of paper, and gripping power tools he used in his employment as a sheet metal worker, with his right hand. On physical examination, initial range of motion testing of the right little finger showed full PIP flexion, metacarpal phalangeal (MP) flexion limited to 40 degrees, and DIP flexion limited to 20 degrees. Range of motion was full after repetitive motion. The examiner noted that joint function in the right little finger was additionally limited by pain, fatigue, weakness, lack of endurance and incoordination after repetitive use, with pain having the major functional impact. He also noted that right hand strength was moderately reduced, and concluded that the decreased range of motion and decreased grip strength of the right hand affected the Veteran occupationally, and with regard to his activities of daily living. The Veteran's service-connected right little finger disability is rated as noncompensable (0 percent) pursuant to 38 C.F.R. § 4.71a, DC 5227, which provides a noncompensable evaluation for unfavorable or favorable ankylosis of both the minor and major ring or little finger. The Veteran's little finger has demonstrated limited range of motion. However, the maximum schedular rating based on limitation of motion for the little finger is a noncompensable rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5230 (any limitation of motion of the ring or little finger is noncompensable). Although a noncompensable disability evaluation represents the maximum schedular rating available for unfavorable or favorable ankylosis under DC 5227, and for limitation of motion under DC 5230, the Board must also consider if evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. There is no evidence of record that the Veteran's right little finger has been amputated, or that it is so non-functional that it should be equated to amputation. In this regard, although the evidence shows that the Veteran has limitation of motion of the little finger, and that there is ankylosis of the DIP joint; there is no evidence of extremely unfavorable ankylosis. In this regard, he still maintains movement in the little finger, and is able to perform daily functions, with the use of the finger, albeit with pain. Nevertheless, the Board finds that the Veteran's service-connected disability has been determined to cause pain, and has required pain medication and the use of a hand brace. See December 2007 VA examination report. Furthermore, joint function in the right hand is additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance, and incoordination, with pain having the major functional impact. See August 2010 VA examination report. The Board also finds that the Veteran's disability results in interference with the overall function of the right hand. In this regard, the December 2007 VA examiner noted that the Veteran's hand grip was slightly reduced in the right hand, and the August 2010 VA examiner noted that right hand strength was moderately reduced, and he concluded that the decreased range of motion and decreased grip strength of the right hand affected the Veteran's ability to perform activities of daily living. The Board notes further that the Veteran's reduced grip strength of the right hand has also been productive of actual industrial impairment. In this regard, the evidence of record includes a February 1994 Work Restriction Evaluation, which shows that the Veteran was given restrictions on using his hands for simple grasping, and the August 2010 VA examiner also concluded that the Veteran's decreased grip strength of the right hand affected him occupationally. Based on this evidence, the Board will rate the little finger disability as analogous to traumatic arthritis of 2 or more groups of minor joints with noncompensable limitation of motion. X-rays of the right hand have revealed osteoarthritic changes in the IP joints of the fingers, including the DIP joint of the right little finger. As a result, a rating of 10 percent for the disability is warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. In making this determination, the Board is mindful that actually painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimum compensable rating for the joint and that in this case the evidence reveals that the Veteran has arthritis demonstrated by x-ray and that the joints of the hand are actually painful. See 38 C.F.R. § 4.59. In finding that 2 or more groups of minor joints are affected, or that the disability is at least analogous to one in which 2 or more groups of minor joints are affected, and in therefore assigning a rating of 10 percent rather than a noncompensable rating, the Board has resolved reasonable doubt in favor of the Veteran. See 38 C.F.R. § 3.102. Because the rating based on limitation of motion could be no more than noncompensable, as discussed above, 10 percent is the maximum schedular rating assignable under the rating criteria, unless there is a showing of occasional incapacitating exacerbations, so as to warrant the next higher rating of 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. As there is no finding, contention, or documentation of incapacitating exacerbations, the next higher rating of 20 percent is not warranted for any period during the pendency of the Veteran's appealed claim for a higher initial rating. Fenderson v. West, 12 Vet. App. 119 (1999). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's right little finger disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, including the codes governing amputations, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. The Board also observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his residuals of his right little finger disability, and there is nothing in the record to indicate that the Veteran's disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The August 2010 examiner concluded that the Veteran's little finger disability affected him occupationally, in that his grip strength was reduced, which affected his ability to grip power tools. However, the examiner did not state that the disability had prevented the Veteran from working, or caused him to lose time from work, or that there were would be any interference with other types of employment. Based on the foregoing, the Board finds that referral for consideration of an extraschedular rating is not warranted. TDIU The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that a service connected disability has caused unemployability. Although the August 2010 examiner indicated that the Veteran's little finger disability affected him occupationally, the examiner did not conclude, and the Veteran has not contended that his service connected disability precludes gainful employment. As there has been no allegation or evidence of unemployability attributable to his service-connected disability, a TDIU is not warranted. ORDER Entitlement to an initial rating of 10 percent, but no more, for osteoarthritis of the little finger of the right hand with ankylosis at the distal interphalangeal joint, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs