Citation Nr: 1306716 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-13 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for a right (major) hand disability, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from January 1982 to January 1986. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued a 20 percent rating for a right hand disability. In July 2010, the Board remanded the claim for additional development. In February 2008, the Veteran was afforded a hearing at the RO before a Hearing Officer. FINDING OF FACT The Veteran's right hand disability is shown to have been productive of arthritis, moderately decreased grip strength, and decreased dexterity; however, there is no evidence of loss of use of right hand (by analogy), amputation of the right ring and little finger (by analogy), or neurological involvement of the radial, median, or ulnar nerves of the right hand. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected right hand disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b) (1), 4.7, 4.71a, 4.124a, Diagnostic Codes 5003, 5010, 5125-5153, 5216-5227 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to a rating in excess of 20 percent for his service-connected right hand disability. He argues that he has right hand pain, and a weakened grip. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. Part 4 (2012). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (2012). As for the history of the disability in issue, see 38 C.F.R. § 4.1 (2012), the Veteran's service treatment reports show that in September 1985, he sustained a fracture to his fourth and fifth metacarpals after he dropped a hatch on his hand. His neurovascular status was noted to be intact. The report notes a fracture of the fourth metacarpal midshaft without dorsal angulation, and an impacted, comminuted fracture of the base of the fifth metacarpal. The assessment was multiple fractures. A January 1986 report notes mild tenderness over a well-healed fracture site at the fourth metacarpal, and a FROM (full range of motion) in the fourth and fifth digits. The impression notes fourth and fifth metacarpal fractures, healed. The report of medical history accompanying the Veteran's separation examination report, dated in December 1985, notes a right boxer's fracture, resolved, NCD (not considered disabling). As for the post-service medical evidence, a December 1992 VA examination report notes very well-healed fractures of the fourth and fifth metacarpals, but that the fourth metacarpal had a malunion and 30 degrees of angulation. The fifth metacarpal was noted to have excellent alignment. VA progress notes, dated in 1998, show treatment for right hand pain, with a deformity at the fourth metacarpal and distal radius, and a finding of DJD (degenerative joint disease). In January 1992, the RO granted service connection for residuals, fracture, right fourth and fifth metacarpal, with traumatic arthritis, evaluated as noncompensable (0 percent disabling). In a rating action dated in January 1993, the RO re-characterized the Veteran's disability to that of "Residuals of a right hand injury with traumatic arthritis". A 20 percent disability rating was then assigned, by analogy, under Diagnostic Code 5222 (favorable ankylosis of three digits of one hand). The Veteran appealed that determination. The Board issued a decision in September 1995 that affirmed the 20 percent rating. In February 2006, the Veteran filed a claim for an increased rating. In June 2006, the RO denied the claim. The Veteran has appealed. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003 (2012), degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as for degenerative arthritis under DC 5003. Notes accompanying the ratings for single finger impairments indicate, for the index finger, zero degrees of flexion represent the fingers fully extended, making a straight line with the rest of the hand. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand at (1). For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. Id.; see also 38 C.F.R. § 4.71a, Plate III. For the purposes of rating disability from arthritis, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints, ratable on a parity with major joints. See 38 C.F.R. § 4.45(f) (2012). The rating schedule further provides that ankylosis of the ring finger should be evaluated as an amputation without metacarpal resection at proximal interphalangeal joint or proximal thereto, if both the metacarpophalangeal and proximal interphalangeal joints of the digit are ankylosed and either is in full extension or full flexion, or there is rotation or angulation of a bone. Under DC 5155, an amputation of the little finger without metacarpal resection, at PIP joint or proximal thereto is assigned a 10 percent disability evaluation. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. As demonstrated by the medical evidence of record, the Veteran is right-handed and as such, major, as opposed to minor, finger disability ratings are applicable. 38 C.F.R. § 4.69 (2012). The criteria for evaluating the severity or impairment of the musculospiral (radial), median, and ulnar nerves is set forth under Diagnostic Codes 8514, 8515, and 8516, respectively. Under these diagnostic codes, a 30 percent rating requires moderate incomplete paralysis in the major hand. Diagnostic Codes 8614, 8714, 8615, 8715, 8626, and 8716, address the criteria for evaluating neuritis and neuralgia of the musculospiral (radial), median, and ulnar nerves, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). A VA examination report, dated in May 2006, shows that the Veteran reported progressively worse right hand symptoms. The Veteran was noted to be right-handed. The report notes overall decreased dexterity and strength, with complaints of pain, swelling, weakness, and stiffness. The report notes arthritis of the long (presumably should be "ring") finger with complaints of severe flare-ups every two to three weeks, during which time the Veteran had difficulty holding a glass, and gripping door knobs. There was no ankylosis or deformity of any digit. The right hand had no additional loss of motion on repetitive use, although pain increased. No neurological symptomatology was reported or recorded. An X-ray was noted to show an old, healed fracture of the right fourth metacarpal in gross anatomical alignment, and no evidence of acute fracture or dislocation. A VA examination report, dated in March 2008, shows that the Veteran complained of right hand pain, weakness, and swelling. He denied fatigability, instability or giving way, or a lack of endurance. He reported daily pain, and that he could not use his hand for simple activities such as opening doors or gripping anything. He also reported a limited range of motion in his fourth and fifth fingers, and some numbness. On examination, there was objective evidence of painful motion, guarding of movement and tenderness, but no effusion, swelling, instability, weakness, or abnormal movement. There was no ankylosis, or inflammatory arthritis. X-rays were noted to show no acute bony abnormality. The examiner noted that there was some limitation of motion. A VA "hand, thumb and fingers" examination report, dated in September 2010, shows that the Veteran complained of an overall decrease in right hand strength and dexterity, as well as pain, limited motion, swelling, weakness, and stiffness of all fingers, including the thumb. He described his pain as constant, and progressively worse. On examination, the right ring (fourth) finger and the right little (fifth) fingers had objective evidence of pain on motion, but no limitation of motion. There was objective evidence of pain after repetitive motion, but no additional (or new) limitation of motion. There was no ankylosis, and no deformity. There was moderately decreased grip strength, and decreased dexterity. There was no time lost due to his symptoms during the previous 12 months. Effects on the usual daily activities were described as "none" (shopping, sports, recreation, traveling, feeding, bathing, dressing, toileting, and grooming), and "moderate" (chores, exercise). A VA "peripheral nerves" examination report, dated in September 2010, shows that the Veteran complained of right hand weakness, stiffness, numbness, dysthesias, and pain. On examination of the peripheral nerves of the upper extremities, they were all 2+ (normal). Muscle tone was normal. A detailed muscle examination was within normal limits. There was no atrophy. Finger flexion and abduction was 5/5. X-rays were normal. There was no evidence of peripheral neuropathy. There was no nerve dysfunction. The Veteran was noted to be working full time, with no time lost during the previous 12 months. There was decreased manual dexterity. The diagnosis was paresthesia right hand status post right fourth metacarpal fracture, with normal EMG (electromyograph) findings. VA progress notes show that in February 2006, the Veteran was noted to have right hand pain. A neurological examination was normal, as was the radial artery pulse. In April 2006, the Veteran received treatment for bilateral hand symptoms. On examination, the right hand had a full PROM (passive range of motion) (specific degrees of motion were not provided). The impression notes chronic ulnar-sided right hand pain. There was no Tinsels at the right elbow. The examiner noted that his old fractures may be contributing to the Veteran's pain, but that he was "hard-pressed" to explain the Veteran's significant symptoms, as there was a lack of degenerative changes at the fourth and fifth CMC (carpal-metacarpal) joints, and increased joint motion at that level. VA Progress notes, dated in March 2007 and September 2010, note that the Veteran lifts weights. The Board finds that the claim must be denied. There is no basis for assigning a higher rating based on limitation of motion of the ring and little fingers. See Diagnostic Code 5230. There is no evidence to show ankylosis of any finger. Indeed, even if ankylosis of the ring and little fingers were shown, Diagnostic Code 5227 does not provide for even compensable ratings. And, for that matter, ankylosis of the ring and little finger, if such were shown, would only to a 10 percent rating. See Diagnostic Code 5223. Indeed, the Veteran is already receiving a rating in excess of the maximum rating available under Diagnostic Codes 5223, 5227, and 5230. In this regard, the Court has determined that if, as here, 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. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are thereby not for consideration. There is also no basis for assigning a higher (30 and 70 percent, respectively) rating by analogy for loss of use (amputation) of the ring and little fingers or loss of use of the right hand. See Diagnostic Codes 5151, 5125. Even in considering his documented pain on motion, decreased strength, and decreased dexterity, the Veteran continues to enjoy the full use of his fingers. He is capable in engaging in a large array of tasks, to include all his activities of daily living. The Board finds it unfathomable that he would be better served by an amputation stump. Next, aside from question of whether there was neurological involvement, which was raised in the April 2006 progress note, there is no evidence establishing that the Veteran's right hand disability involves any neurological complications. The September 2010 VA peripheral nerves examination report shows that the peripheral nerves of the upper extremities were all 2+ (normal), with normal muscle tone, no atrophy, 5/5 finger flexion and abduction strength, no evidence of peripheral neuropathy, no nerve dysfunction, and normal EMG findings. The evidence simply does not support assignment of a separate compensable or higher (20 percent) rating for a disability of the radial, median, or ulnar nerve. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluation should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted. The Board has considered the Veteran's statements that he should be entitled to higher disability rating for his right hand. He reports periods of flare up along with decreased function due to pain, weakness, and reduced dexterity. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d at 1331. Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Veteran is competent to report his current right hand symptoms as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than the Veteran's assessment of the severity of his disability. Those examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his hand disability. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected right hand disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the 20 percent rating assigned herein more than reasonably describes the Veteran's disability level and symptomatology. The Veteran is shown to have some decreased strength and dexterity in his right hand with no history of surgery. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In reaching this decision, the Board has considered the oral and written testimony of the Veteran. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He reports full-time employment as a support specialist. See Report of VA examination September 2010. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligations in this case were accomplished by way of a letter from the RO to the Veteran dated in May 2006. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA medical records. The Veteran has been afforded several examinations. Concerning these examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the May 2006, March 2008, and September 2010 examination reports reflect that the examiners reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As noted above, the Veteran was provided with a hearing before a RO Decision Review Officer in February 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above 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. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. Specific testimony was elicited regarding the nature and severity of the Veteran's right hand disability. In July 2010, the Board remanded this claim in order to afford the Veteran new examinations, based on his assertion of worsening symptoms, and it was directed that the Veteran's VA records be obtained that are dated after November 2008, and that he be afforded the opportunity to identify all non-VA treatment since March 2008. That same month, the Veteran was sent a duty-to-assist letter that was in conformance with the Board's directions. There is no record to show that the Veteran identified any additional private treatment. Additional VA treatment reports have been obtained, dated between 2008 and 2010. In September 2010, the Veteran was afforded VA examinations of his hand and nerves. Under the circumstances, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Entitlement to an increased rating for a right (major) hand disability, currently rated as 20 percent disabling is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs