Citation Nr: 1304281 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-27 852A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for status post fracture of the distal right fibula prior to August 6, 2008. 2. Entitlement to a rating in excess of 40 percent for status post fracture of the distal right fibula from December 1, 2008. 3. Entitlement to a compensable rating for status post fracture of the right first metacarpal with osteoarthritis. 4. Entitlement to a rating in excess of 10 percent for scars of the nose, left side of the face and scalp except for the painful scar at the forehead hairline. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from December 1985 to November 1990. These matters initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2010, the Veteran testified during a Board hearing at the RO before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In January 2011, the Board granted a separate 10 percent disability rating for a painful scar at the forehead hairline and remanded the issues listed on the title page to the RO, via the Appeals Management Center (AMC). In November 2011, the RO increased the rating for the right fibula disability to 40 percent, effective December 1, 2008, creating a staged rating as indicated on the title page. In February 2012, the Board granted separate ratings for right fibula and right metacarpal scars, and remanded the remaining claims to the RO via the AMC, for additional development. As discussed below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has reviewed both the physical and Virtual VA claims file. In a January 2012 VA treatment note in the Virtual VA file, a nurse practitioner indicated that the Veteran had low back pain secondary to an altered gait caused by his right fibula disability. If the appellant desires to file a claim concerning his low back, he should do so with specificity at the RO. FINDINGS OF FACT 1. The Veteran was notified of the date and location of the examinations scheduled in connection with his increased ratings claims at his last known address, the notification letter was not returned as undeliverable, and the Veteran failed to appear for the scheduled examinations after being informed of the consequences of doing so. 2. Prior to assignment of a temporary total rating effective August 6, 2008 through November 30, 2008, the Veteran's right fibula symptoms most nearly approximated moderate limitation of motion of the ankle. 3. From December 1, 2008, the Veteran is in receipt of the maximum schedular 40 percent rating the ankylosis caused by his right fibula disability. 4. Symptoms of the Veteran's status post fracture of the right first metacarpal with osteoarthritis included painful motion that caused some functional impairment, but symptoms did not more nearly approximate a gap of one to two inches between the thumb pad and fingers, with the thumb attempting to opposed the fingers. Numbness and other complaints could not be verified as he did not report for examination. 5. The scars of the Veteran's nose, left side of the face, and scalp except for the painful scar at the forehead hairline have most nearly approximated one characteristic of disfigurement throughout the appeal period. CONCLUSIONS OF LAW 1. To the extent that entitlement to increased ratings cannot be established without a current VA examination or reexamination, the claims must be denied. 38 C.F.R. § 3.655 (2012). 2. Prior to assignment of a temporary total rating effective August 2008 through November 30, 2008, the criteria for a rating higher than 20 percent for status post fracture of the distal right fibula, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5270 (2012). 3. From December 1, 2008, the criteria for a rating higher than 40 percent for status post fracture of the distal right fibula have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71, 4.71a, DC 5271 (2012). 4. The criteria for a rating of 10 percent, but no higher, for status post fracture of the right first metacarpal with osteoarthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5228 (2012). 5. The criteria for a rating higher than 10 percent for scars of the Veteran's nose, left side of the face, and scalp, except for the painful scar at the forehead hairline, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, DC 7800 (effective prior to and from October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist claimants in the development of their claims. 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). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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 Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a November 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claims for increased ratings for status post right fibula and right first metacarpal fractures and scars of the nose, face, and scalp. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the November 2006 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the November 2006 letter. In addition, in a January 2009 letter, the RO provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claims in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 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. § 5103A; 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). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. In its February 2012 remand, the Board instructed that the RO/AMC attempt to obtain, with the Veteran's assistance, records from a private physician and a VA Medical Center (VAMC) since January 2010. The RO/AMC obtained the VAMC records, which have been made part of the Virtual VA claims file, and sent the Veteran a February 2012 letter asking him to complete the enclosed authorization and consent to release information form or send the information himself. The Veteran neither completed the form nor sent the information himself. The RO/AMC thus substantially complied with the Board's February 2012 remand instructions in this regard and was not required to take additional action pursuant to its duty to assist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. § 3.159(c)(1)(ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing authorization for release of records). In addition, the Veteran was afforded multiple VA examinations that addressed the severity of his service connected disabilities. In its January 2011 remand, the Board instructed that the Veteran be afforded examinations as to his right ankle, right first metacarpal, and scar of the nose, left side of face, and scalp. Such examinations were provided in February 2011. In its February 2012 remand, the Board found that additional examination was required because the February 2011 VA examiner did not address various aspects of the skin, right metacarpal, and right ankle disabilities. The Board also instructed that the Veteran be notified that it was his responsibility to report to the scheduled examination and the consequences of failure to report. In a February 2012 letter, the RO/AMC informed the Veteran that it had asked the VAMC to schedule him for an examination and that failure to report for the examination could result in denial of the claim. Later in February 2012, the VAMC notified the Veteran of the date, time, and location of the examination, which was scheduled for later that month. Neither of the February 2012 letters was returned as undeliverable and the Veteran is therefore presumed to have received them. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to VA mailings). The Veteran did not appear for the scheduled examination. A computer generated document from the VAMC indicates that the Veteran was notified of the examination by phone and in two appointment letters and that he called the day of the examination and indicated he was unable to report. There is no indication that the Veteran showed or attempted to show good cause for his failure to report. As the Veteran was notified of the VA examination and failed to report for it without good cause, the provisions of 38 C.F.R. § 3.655 are for application and will be discussed below. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for increased ratings for status post right fibula and right first metacarpal with osteoarthritis and for scars of the left side of the nose, face, and scalp are thus ready to be considered on the merits. Analysis As relevant to this case, 38 C.F.R. § 3.655(a) provides that when entitlement to a benefit sought cannot be established without a current VA examination or reexamination and a claimant fails to report for such examination without good cause, action shall be taken in accordance with 38 C.F.R. § 3.655(b). 38 C.F.R. § 3.655(b) provides that when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, "the claim shall be denied." 38 C.F.R. § 3.655(a),(b). The Veteran was granted service connection for the disabilities for which he seeks increased ratings in August 1991, and the claims for increased ratings on appeal were filed in July 2006. As the claims thus fell within the category of "claim for increase," they must be denied if the benefit sought cannot be established without the scheduled examination. Cf. Turk v. Peake, 21 Vet. App. 565, 570 (2008) (a claim for a higher initial rating is an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655(b)). The Board will therefore consider whether entitlement to the increased ratings can be established without the VA examination that was scheduled for February 2012 and to which the Veteran failed to report without showing good cause. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, a staged rating is in effect for the right fibula disability. The service connected disabilities analyzed below resulted from a helicopter crash in which the Veteran fractured his right ankle and thumb and also suffered a number of burns, which led to scarring. Right Fibula Disability Prior to August 6, 2008 As indicated in an August 2008 letter from Dr. Hasselman, the Veteran underwent fusion of his right ankle and subtalar joints. Based on this surgery, the Veteran was granted a temporary total rating from August 6, 2008 to November 30, 2008. He was initially rated 20 percent prior to and after this period, but, as noted, the RO increased the rating to 40 percent effective December 1, 2008. The issues with regard to the right ankle are therefore entitlement to a rating higher than 20 percent prior to August 6, 2008 and a rating higher than 40 percent from December 1, 2008. Prior to August 6, 2008, the Veteran's right fibula disability was rated 20 percent under 38 C.F.R. § 4.71a, DC 5271. Under DC 5271, moderate limitation of motion warrants a 20 percent rating and marked limitation of motion warrants a 30 percent rating. Normal range of motion of the ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. On the March 2007 VA examination, the Veteran indicated that he experienced constant pain, increasing with activity, weakness with subluxation, stiffness after physical activity, swelling with weight bearing, decreased range of motion, fatigability, and lack of endurance. He also reported flare-ups every other day depending on his activity level, with increased pain lasting as long as the activity resolving with rest after approximately 20 minutes. The Veteran wore a brace but did not use a cane. On examination, there was tenderness to palpation, no significant instability, pain with all range of motion, and the Veteran could perform circular range of motion 360 although in a very small circle. Range of motion was 0 to 20 degrees dorsiflexion and 0 to 20 degrees of plantar flexion. Pain increased at all range of motion at 20 degrees of dorsiflexion and at 20 degrees of plantar flexion. Pain was present prior to and increased at those degrees. There was weakness, decreased endurance, and easy fatigability with repetitive range of motion of the right ankle. Repetition did not change the degrees but it did increase pain. There was no swelling, no redness, and the right foot was warm to touch with 2 plus pedal pulse. There was normal coloring and adequate sensation. Ratings higher than 20 percent under the diagnostic codes applicable to the ankle, DCs 5270 through 5274, require ankylosis and there was no ankylosis prior to the Veteran's August 2008 fusion surgery. Thus, the only issue with regard to the schedular rating for the right ankle prior to August 6, 2008 is whether the Veteran's symptoms more nearly approximate moderate or marked limitation of the ankle. These terms are not defined in the applicable regulations. The Veteran's right ankle dorsiflexion was normal and his plantar flexion was slightly less than half of normal (20 out of 45 degrees). Given the normal dorsiflexion and the fact that the Veteran still had significant plantar flexion, as well as the fact that there was no additional limitation due to any of the DeLuca factors during repetition on examination, the Board finds that the Veteran's symptoms more nearly approximated moderate limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system). With regard to the Veteran's failure to report for the examination, the examination was ordered to determine whether any neurological impairment was present. The Board thus found that symptoms such as insensitivity at the distal end of the thumb did not warrant a higher or separate rating under the diagnostic codes applicable to neurological impairment of the thumb. 38 C.F.R. § 4.124a, DC 8523 through 8525 (and corresponding provisions relating to neuritis and neuralgia) provide for compensable ratings for mild or moderate incomplete paralysis of the anterior tibial, internal popliteal, or posterior tibial nerve. While the Veteran's testimony and medical evidence indicate some numbness of the right ankle, there was adequate sensation on the March 2007 VA examination, and the Veteran's failure to report to the scheduled examination has resulted in an absence of evidence showing that he meets the criteria for a compensable rating based on mild or moderate incomplete paralysis of the anterior tibial, internal popliteal, or posterior tibial nerve under the applicable diagnostic codes. As there is insufficient evidence prior to August 6, 2008 of neurological impairment relating to the right fibula, entitlement to a higher or separate rating based on neurological impairment cannot be established without the examination and must be denied. From December 1, 2008 From December 1, 2008, the Veteran's right ankle is rated 40 percent under DC 5270 applicable to ankylosis of the ankle, as he underwent fusion surgery. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992). The maximum schedular rating under DC 5270 is 40 percent, which is authorized for ankylosis of an ankle if the ankylosis is in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. As the Veteran is receiving the maximum schedular rating under DC 5270, the Board cannot grant a higher rating under this diagnostic code. As a general matter, the Board has a duty to acknowledge and consider all diagnostic codes that are potentially applicable. Schafrath, 1 Vet. App. at 593. In this case, however, there are no ratings higher than 40 percent under any of the diagnostic codes applicable to the ankle, DCs 5270 to 5274. The only remaining question in this regard is whether a separate or higher rating is warranted for other symptoms, such as neurological symptoms. On the February 2011 VA examination, the Veteran reported that the surgery helped his ankle stability but he still had pain. He also indicated that he experienced numbness at the top of the second toes and the big toe, as well as the area where the original bone graft was performed, but that this superficial numbness did not cause any further joint involvement or functional impairment. On examination, there was no range of motion of the ankle because it was fused, it was very tender to touch and there was muscle wasting and atrophy. The Veteran was able to wiggle his toes freely without pain. Muscle strength of each toe and the whole foot were 3/5. Gait was antalgic, abnormal, and included a prominent limp due to an inability to flex the foot. The Veteran was unable to balance on his toes and heels due to pain, and there was no range of motion or ability to rotate the ankle due to fusion. The diagnosis was right ankle fracture healed with surgical fusion with presence of a vertical intramedullary nail thought the calcaneus and severe osteoarthritis of the tibiotalar joint compatible with post traumatic dystrophic ossification of the distal tibiofibular interosseous ligament. In its February 2012 remand, the Board noted that the February 2011 VA examiner had not indicated whether the Veteran had any neurological impairment associated with the right ankle disability and instructed that a new examination be conducted tat would indicate the extent of any neurological impairment. As noted, however, the Veteran did not appear for the scheduled examination. There is evidence relevant to this question in the claims file. Specifically, a February 2011 VA treatment note indicated that there was atrophy of right gastroc and soleus muscles secondary to not using the ankle with sensory intact and lower extremity reflexes symmetric, with the exception of an absent right Achilles reflex due to the fact that the fact that the joint had been fused. The Board finds that the above evidence is insufficient to establish entitlement to an increased or separate rating for the right ankle disability due to neurological impairment. The Veteran's testimony and the medical evidence indicate some numbness of the right ankle and abnormalities, but they do not reflect that there has been mild or moderate incomplete paralysis of the anterior tibial, internal popliteal, or posterior tibial nerve warranting a compensable rating under 38 C.F.R. § 4.124a, DCs 8523 through 8525, or neuritis or neuralgia relating to these nerves warranting compensable ratings under the corresponding diagnostic codes. As entitlement to an increased or separate rating for right ankle based on neurological impairment cannot be established without a current examination and the Veteran failed to report for the examination scheduled for this purpose in connection with his increased rating claim, entitlement to such a rating must be denied. 38 C.F.R. § 3.655(b). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's right fibula disability more nearly approximated moderate rather than marked limitation of motion prior to August 6, 2008 and there is no basis for any higher or separate rating based on neurological impairment or otherwise at any time during the appeal period. A schedular rating in excess of 20 percent is therefore not warranted prior to August 6, 2008 and a schedular rating in excess of 40 percent is not warranted from December 1, 2008. Right First Metacarpal The Veteran's right first metacarpal disability is rated under 38 C.F.R. § 4.71a, DC 5228. Under DC 5228, a zero percent rating is assignable for limitation with 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 requires a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The maximum schedular 20 percent rating is assigned for a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. In addition, DC 5003 provides that when limitation of motion under the specific joint involved is noncompensable under the appropriate diagnostic codes, is for application for each joint affected by limitation of motion. Limitation must be confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. As noted, VA must also consider additional functional impairment during flare-ups due to pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca, 8 Vet. App. at 204-7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. These regulations also provide that, when rating disabilities based on limitation of motion, the intent of the Rating Schedule is to "recognize painful motion with joint or periarticular pathology as productive of disability," as well as to recognize that "actually painful" joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Similarly, 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. 38 C.F.R. § 4.40. These regulations apply regardless of whether the painful motion is related to arthritis and may warrant a rating of 10 percent even in the absence of limitation of motion. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). On the March 2007 VA examination, the Veteran denied any significant pain to the right thumb, decreased range of motion, or decreased grip strength. He indicated that he did not drop things and did not have any flare-ups. The Veteran did complain of numbness. On examination, there was no tenderness to palpation and there was full range of motion. The thumb did not limit the range of motion of the remaining fingers, which was 0 to 90 degrees with no weakness, decreased endurance, pain, limiting factors, or easy fatigability. Repetition did not change the degrees and did not cause pain. The right thumb metacarpal joint range of motion was from 0 to 90 degrees and the proximal interphalangeal joint was from 0 to 100 degrees. There was no pain with repetitive range of motion, no weakness or decreased endurance, no easy fatigability, and no limiting factors. Grip strength was 5/5 and the Veteran was able to make a complete fist and fully extend the thumb and the remaining fingers. There was adequate strength for pushing, pulling, and twisting. There was no change with passive or active range of motion in degrees and no swelling, redness, or obvious deformities. X-ray showed moderate arthritis of the thumb carpometacarpal joint with joint space narrowing and osteophyte formation. There was no other osseous, articular or soft tissue abnormality noted. The diagnosis was fractured right thumb, resolved, with residual scarring. During the Board hearing, the Veteran complained of numbness. He indicated in response to whether he had limitation of motion of the thumb that he did not move it much but he had diminished strength. On the February 2011 VA examination, the Veteran complained of numbness and noted that EMG studies would be performed in March 2011. The Veteran reiterated that his main complaint was not pain but numbness that occurred with repetitive motion, which made it difficult to type or write, play video games or pool, and play ball with his children. He denied swelling but indicated that the hand frequently gave out especially if he tried to lift something. When lifting objects, he would hear a popping sound and feel a fleeting pain, causing him to drop the item. On examination, thumb pain was 0/10 with a complaint of tightness. There was slight tenderness on deep palpation of the distal end of the thumb. Hand grip was decreased at 3/5 and slight muscle wasting was apparent at the thenar area. The Veteran was able to approximate the thumb to all fingers and hold them against resistance. Paper test was positive in that he could not hold on to the paper. Pushing was 2/5 against resistance and caused pain and giving way in the wrist. Dorsiflexion was 0 to 60 degrees with -10 degrees due to lack of range of motion and pain. Palmar flexion was 0 to 80 degrees without increased pain. Ulnar deviation was 0-45 degrees with increased pain. Radial deviation was 0 to 20 degrees with increased pain. Repetitive range of motion caused pain, weakness, fatigue, lack of endurance, lack of coordination, but no further decrease in range of motion. A popping sensation was replicated with range of motion, but no numbness occurred at the time of the examination. Microfilament revealed some insensitivity at the distal end of the thumb. The diagnosis was moderate osteoarthritis of the thumb at the carpometacarpal joint. A March 2011 EMG report indicated that there were some limitations by pain but there was 4/5 strength distally and 4/5 strength proximally. Following nerve conduction study and needle EMG, the impression was, "This EMG/NCS shows evidence for a right median mononeuropathy at or distal to the wrist (i.e., carpal tunnel syndrome). It is moderate in degree electrically without evidence for denervation. This finding was not present on the left side. Given that the February 2011 VA examiner indicated that there was functional limitation due to right thumb pain, a 10 percent rating for status post fracture of the right first metacarpal with osteoarthritis is warranted under DC 5003 and 38 C.F.R. §§ 4.40, 4.45, and 4.59. A rating higher than 10 percent is not warranted, however, because there was no pain or functional limitation of the thumb prior to February 2011 and none of the evidence throughout the appeal period reflects that the symptoms of the Veteran's right thumb disability more nearly approximated a gap of one to two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In addition, a higher rating is not warranted for neurological impairment because, while the Veteran complained of numbness and there was some decreased grip strength and insensitivity on examination, the evidence of record does not reflect that there was mild incomplete paralysis of the lower radicular group, which is required for the minimum 20 percent rating under 38 C.F.R. § 4.124a, DC 8512 or corresponding neuritis or neuralgia under DCs 8612 and 8712. While the Board sought additional evidence of neurological impairment relating to the right first metacarpal, the Veteran failed to appear for the examination that was scheduled. As entitlement to a higher or separate rating based on neurologic impairment, the claim for increase on this basis must be denied. 38 C.F.R. § 3.655(b). Scars The Veteran's scars of the nose, left side of the face, and scalp are rated 10 percent under 38 C.F.R. § 4.118, DC 7800. The criteria used to evaluate disabilities involving the skin were revised effective October 23, 2008. The revised version of DC 7800 is similar to the former version, however. The current version refers to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. The former version simply refers to disfigurement of the head, face, or neck. Under both versions of DC 7800 a 10 percent rating is assigned for one characteristic of disfigurement, and a 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips); or when there are two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features; or when there are four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features; or when there are four or five characteristics of disfigurement. The 8 characteristics of disfigurement are: 1) Scar 5 or more inches (13 or more cm.) in length; 2) Scar at least one-quarter inch (0.6 cm.) wide at widest part; 3) Surface contour of scar elevated or depressed on palpation; 4) Scar adherent to underlying tissue; 5) Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); 6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); 7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and 8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). As indicated in the Board's January 2011 remand, it was not clear from the March 2007 VA examination whether the scarring of the Veteran's face, nose, and scalp met more than one characteristic of disfigurement, for example, whether he had both scarring of 5 or more inches in length and scarring amounting to at least a quarter inch in length in diameter at its widest part. In addition, as indicated in the Board's February 2012 remand, the February 2011 VA examiner did not address whether the skin in the area of the scars of the nose, left side of the face, and scalp (except for the forehead hairline) was hypo or hyperpigmented and, if so, the specific length and width of each area or hypo or hyperpigmentation, whether there were any areas where the skin in the area of the scars of the nose, left side of the face, and scalp (except for the forehead hairline) was indurated and inflexible and, if so, the length and width of any such area, and whether any of the scars result in any limitation of function. The above discussion reflects the Board's determination that entitlement to an increased rating could not be established based on the evidence of record without a new VA examination. As the Veteran did not appear for the scheduled examination and entitlement to an increased rating for scars of the nose, left side of the face, and scalp except for the painful scar at the forehead hairline cannot be established without a current VA reexamination, the claim for increase must be denied. 38 C.F.R. § 3.655(b). Extraschedular As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's disabilities are fully contemplated by the applicable rating criteria. The right ankle criteria took account of the Veteran's symptoms prior to and after fusion surgery, including ankylosis, the right metacarpal criteria took account of pain and range of motion, and the skin criteria took account of the nature of the scars. The Board also discussed the criteria applicable to neurologic symptoms such as numbness but, as noted, the Veteran's failure to report to the scheduled VA examination resulted in a lack of evidence as to both the neurologic and skin symptoms. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran indicated on the February 2011 VA examination that he was employed full time by the U.S. postal service and had not missed work due to his disabilities. Therefore, referral for consideration of an extraschedular rating for the right fibula, right metacarpal, or skin disabilities addressed herein is not warranted. 38 C.F.R. § 3.321(b)(1). Conclusion For the reasons stated above, the preponderance of the evidence is against any higher rating, other than a rating of 10 percent for the right first metacarpal disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claims for increased ratings for right fibula and right first metacarpal disability and for scars of the nose, left side of the face and scalp except for the painful scar at the forehead hairline, must otherwise be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to a rating in excess of 20 percent for status post fracture of the distal right fibula prior to August 6, 2008 is denied. Entitlement to a rating in excess of 40 percent for status post fracture of the distal right fibula from December 1, 2008 is denied. Entitlement to a rating of 10 percent, but no higher, for status post fracture of the right first metacarpal with osteoarthritis is granted, subject to controlling regulations governing the payment of monetary awards; the claim for an increased rating for this disability is otherwise denied. Entitlement to a rating in excess of 10 percent for scars of the nose, left side of the face and scalp except for the painful scar at the forehead hairline, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs