Citation Nr: 1307470 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 12-32 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 0 percent for residuals of a fracture to the fifth metacarpal in the left hand. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1956. This matter is on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the course of the appeal, the Veteran's left hand disability has been characterized by X-ray evidence of arthritis in the joint with slight limitation of motion, however, favorable or unfavorable ankylosis of any of the fingers or thumb, or limitation of motion of the thumb with a gap of more than two inches, has not been shown. CONCLUSION OF LAW The criteria for a 10 percent rating, but not higher, for residuals of a fracture to the fifth metacarpal in the left hand have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5218-5222 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Rather, the Veteran's claim arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. Next, VA has a duty to assist a veteran in the development of the claim. That duty includes assisting him in the procurement of service records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records. Further, the Veteran submitted statements in support of his claim. Additionally, a VA examination with respect to the issue on appeal was obtained in December 2011. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examinations obtained in this case is more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). Therefore, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability rating are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Te Board should consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. VA should regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. § 4.14 (2012). The Board notes that other factors causing limitation of function should be considered in adjudicating claims where a rating is assigned under a diagnostic code governing limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2012). In cases where the Veteran's claim arises from a disagreement with the initial rating following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In an April 2012 rating decision, the Veteran was service connected for residuals of a fracture to the fifth metacarpal of the left hand, his non-dominant hand, with a 0 percent disability rating assigned under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5230 (addressing traumatic arthritis and limitation of motion in the little finger). In August 2011, he submitted a timely notice of disagreement with the assigned disability rating. As an initial matter, the Board find that a 10 percent rating is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). A 10 percent is warranted for degenerative arthritis that is established by X-ray evidence which results in limitation of motion, even if the limitation is noncompensable under the other appropriate diagnostic codes. However, the rating may be only combined, not added, to compensable ratings under other diagnostic codes. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In this case, X-rays of the Veteran's left hand taken during his December 2011 VA examination indicated a "chronic posttraumatic deformity of the fifth metacarpal" with "minor scattered joint space degenerative changes." While no limitation of motion was observed at that time, subsequent physical therapy treatment notes have indicate that there are at least some minimal limitations of motion, in addition to painful motion. For example, in September 2012, range of motion was specifically observed to be limited in the fifth digit. Consequently, the Board concludes that there is X-ray evidence of degenerative arthritis in the left hand, and that the arthritis has caused at least some limitation of motion. Even though this limitation appears to be to a noncompensable level, a 10 percent rating is nonetheless warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Next, the Board considers whether a rating in excess of 10 percent is warranted for the traumatic arthritis in the fifth metacarpal joint. In order to warrant a rating in excess of 10 percent for disabilities to the in the non-dominant hand, the evidence must show favorable ankylosis of five fingers on the affected hand (40 percent under Diagnostic Code 5220); favorable ankylosis of four digits on one hand (40 percent for the thumb and any three fingers and 30 percent for the fingers under Diagnostic Code 5221); ankylosis of three digits on one hand (Diagnostic Codes 5218 and 5222), thumb and any two fingers (40 percent for unfavorable, 30 percent for favorable), index and two other fingers (30 percent for unfavorable, 20 percent for favorable), long, ring and little (20 percent for favorable or unfavorable); ankylosis of two digits on one hand (Diagnostic Codes 5219 and 5223), thumb and any other finger (30 percent for unfavorable, 20 percent for favorable), index and one other finger (20 percent for favorable or unfavorable), long and ring, long and little or ring and little fingers (20 percent for unfavorable); ankylosis of the thumb (20 percent under Diagnostic Code 5224); or limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the opposing fingers (20 percent under Diagnostic Code 5228). See 38 C.F.R. § 4.71a. However, the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2012). Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted, as ankylosis of any sort or limitation with a gap of two inches between the thumb pad and opposing fingers has not been shown. Significantly, when the Veteran underwent a VA examination in December 2011 that was directed specifically to the issue on appeal, he complained of pain in his left hand that was exacerbated during periods of flare-up. The pain typically affected employment activities such as picking up debris, mowing the lawn and snow blowing. He also stated that his pain causes his grip strength to be less in his left hand than on his right. Upon examination, the Veteran experienced minimal pain upon palpation of the fifth metacarpal area of the left hand. However, there was no indication of limitation of motion or evidence of painful motion for any of the fingers or thumbs. In fact, no gap was observed between the thumb pad and the fingers when flexed. The Veteran was also able to flex his fingers repeatedly, and there was no additional limitation of motion after such repetitive motion. The examiner noticed some diminished grip strength in the left hand, but only slightly so. Since the time of that VA examination, the Veteran has undergone a series of physical therapy sessions for his left hand throughout 2012. Notably, in August 2012, he stated that his pain had been persistent and had been getting progressively worse in the last year. He characterized his pain as constant, at about a 3 or 4 out of 10, but it increased when he made a strong fist. Upon examination, his fingers were able to flex into the distal palmar crease, with the exception of the little finger, which left a 1 centimeter gap. During the physical therapy sessions, he was treated with heat and some ultrasound, but the evidence does not indicate that he has undergone any surgical procedures. The Board is aware that the recent physical therapy records suggest that the Veteran's left hand disability has slightly worsened since the VA examination in December 2011. It is within VA's duty to assist to afford the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened. Snuffer v. Gober, 10 Vet. App. 400 (1997). However, a new examination is not required in every instance, and is generally only necessary where there has been a material change in the disability or that the evidence suggests that the current rating may be incorrect. Caffrey v. Brown, 6 Vet. App. 377 (1994). In this case, the increased symptoms the Veteran has recently exhibited are very slight when compared to what is required in order for a rating in excess of 10 percent to be warranted under the relevant diagnostic codes. Notably, ankylosis of the little finger (or any other finger) has never been shown, nor has he ever asserted that any ankylosis-like symptoms have ever existed. Moreover, even though some of the physical therapy records suggest that he is unable to touch the palm of his hand with his left little finger, he has never exhibited a limitation of motion anywhere near the point where there is a two-inch gap between the finger and his palm. Therefore, there is simply no evidence to suggest that any increase in symptoms were material, and there is no evidence to suggest that the current rating is incorrect. In considering the claim, the Board has also considered a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased rating more than 10 percent for the Veteran's service-connected left hand disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the rating already assigned. Specifically, the VA examiner provided information relating to the amount of limitation that is caused by pain and fatigue. The examiner explicitly stated that there was no additional range of motion loss due to fatigue, lack of endurance, or incoordination. The effect of that symptomatology is contemplated in the currently assigned disability rating. The Board has also considered the effect it has on his occupational functioning and, despite his complaints of pain, there is little evidence to indicate that it actually impairs his job performance. In considering the appropriate disability rating, the Board has also considered the Veteran's statements regarding the extent of his left hand disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his left hand according to the appropriate diagnostic code. On the other hand, competent evidence concerning the nature and extent of the Veteran's left hand disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings provided in the examination reports directly address the criteria under which the disability is rated. The Board also finds that a referral for an extraschedular rating, which is a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996). To determine whether referral for such consideration is warranted VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria. The symptoms related to his left hand disability were applied to the applicable rating criteria. Although the diagnostic code in this case allows for higher ratings, the Board fully explained why a higher rating was not warranted. Therefore, the Board finds that the schedular ratings are adequate. In addition, frequent hospitalization and marked interference with employment are not shown. Therefore, referral for consideration of an extraschedular rating is not warranted. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. In fact, it appears from the evidence that he is still employed. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, based on the evidence of record, the Board determines that a 10 percent rating, but no more, is warranted for his left hand. The appeal is granted to that extent. ORDER A 10 percent initial rating, but not higher, for residuals of a fracture to the fifth metacarpal in the left hand is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs