Citation Nr: 1307986 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-48 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent for flexor tenosynovitis of the right long finger with a scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to January 2004. He also served on active duty for training from June 10 to August 28, 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in July 2012. A transcript of the hearing is associated with the claims folder. During the July 2012 hearing, the Veteran submitted to the Board additional evidence for consideration in connection with the claims on appeal. The Veteran's waiver of RO jurisdiction for this evidence was received in a written statement dated in July 2012. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). (The issue of entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine is addressed in the remand that follows the decision below). FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. Flexor tenosynovitis of the right long finger with tender scar is manifested by some loss of motion and a 7 centimeter well-healed, tender scar. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for flexor tenosynovitis of the right long finger with tender scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.10, 4.73, 4.118, Diagnostic Code 5307-7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. As for the service-connected right finger disability decided herein, the claim for a higher disability rating is a "downstream" issue in that it arose from an initial grant of service connection. Prior to the December 2009 rating decision, the RO issued a letter in May 2009 that advised the Veteran of the evidence necessary to substantiate his claim for service connection and of his and VA's respective obligations with regard to obtaining evidence. As previously noted, in the December 2009 rating action, the RO granted service connection for flexor tenosynovitis of the right long finger with a scar and rated this disability as 10 percent disabling, effective May 22, 2009. Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice requirements. Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the RO obtained the Veteran's service treatment and personnel records, post-service private treatment records, VA examinations and medical opinions, and lay statements and hearing testimony. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file. Accordingly, VA has no duty to inform or assist that was unmet with respect to obtaining all available identified medical records. A VA examination with respect to the right finger claim on appeal was obtained in December 2009. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained here is sufficient as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the rating criteria. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue being decided on appeal. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection, and staged ratings are to be considered. The Veteran's flexor tenosynovitis of the right long finger with scar has been rated as 10 percent disabling under a hyphenated Code 5307-7804. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Muscle Group VII is rated under Diagnostic Code 5307. This Muscle Group addresses flexion of wrist and fingers, those muscles arising from internal condyle of the humerus, flexors of the carpus and long flexors of fingers and the thumb, and the pronator. Under Diagnostic Code 5307, a noncompensable evaluation is warranted if impairment of this muscle group is slight; a 10 percent rating is warranted if impairment of this muscle group is moderate; a 30 percent rating for the dominant hand or a 20 percent rating for the non-dominant had is warranted if impairment of this muscle group is moderately severe; and a 40 percent rating for the dominant hand or a 30 percent rating for the non-dominant hand is warranted if it is severe. 38 C.F.R. § 4.73 (2012). The use of Code 5307-7804 indicates that the existing rating has actually been assigned based on unstable or painful scarring. See 38 C.F.R. § 4.114. Here, under Diagnostic Code 7804 a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Finally, scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note 3. Private treatment records from Dickson Medical Associates dated from May 2007 to May 2009 and prior to the receipt of the Veteran's claim noted his history of a staph infection in his right hand. In May 2009, he complained of cramping in his right hand. In correspondence dated in June 2009, the Veteran's wife stated that the Veteran had very little feeling in his right middle finger and that his hand had limited mobility and cramped up very frequently. In a separate statement, the Veteran also described having limited feeling and use of this middle finger and hand. During a December 2009 VA hand, thumb, and fingers examination, the Veteran described developing septic flexor tenosynovitis of the right long finger while in service that was treated with multiple debridements and wound closure. He stated that since that time he had developed a pain syndrome affecting the finger that gives him difficulty when using his hand. He described the course of his finger disability as stable since onset and denied a history of flare-ups. The Veteran reported that he was right-hand dominant. On range-of-motion testing of the right long finger, extension of the right DIP (distal interphalangeal) joint was limited by 5 degrees, extension of the right PIP (proximal interphalangeal) joint was limited by 10 degrees, and extension of the right MP (metaphalangeal) joint was limited by 5 degrees. There was no gap between the long finger and proximal transverse crease of the hand on maximal flexion of the finger. There was objective evidence of pain, including after repetitive motion. There was no additional or new limitation of motion after repetitive testing. The examiner also indicated that there was no amputation of part or all of a digit; no ankylosis; no deformity; no decreased strength for pushing, pulling, or twisting; and no decreased dexterity for twisting, probing, writing, touching, or expression. Other findings included a 7cm well-healed tender scar over the palmar side of the right long finger from the distal palmar crease to the distal interphalangeal flexion crease. The Veteran indicated that he worked full time for the railroad and that he lost no time from work due to his finger in the past 12-month period. Following a review of the claims file and physical examination, the examining surgeon concluded that the Veteran's residuals of flexor tenosynovitis of the right long finger resulted in pain during the Veteran's occupational activities and caused some mild to moderate effects on the Veteran's usual daily activities. Additional private treatment records from Dickson Medical Associates dated from January 2009 through August 2010 were received after the Veteran's claim was denied. During June 2009 treatment, the Veteran reported having hand cramps. Examination of the digits revealed no deformity, clubbing, or cyanosis. The assessment was hand pains, possible carpal tunnel syndrome. The physician ordered an EMG (electroneuromyographic) examination. A July 2009 nerve conduction study (NCS)/EMG noted the Veteran's complaints of pain and paresthesia in the hands. The impression was normal study. During January 2010 treatment, the Veteran reported right hand pain and decreased grip in his right hand. On examination of the right upper extremity, the right hand had decreased grip strength. During private treatment in August 2010, the Veteran complained of right hand pain with symptoms of numbness and tingling along the radial border, exacerbated by driving. He also reported his history of infection in the right long finger in 2000 with subsequent surgery. On examination of the right long finger, there was a well-healed surgical scar, and range of motion was excellent. Examination findings of the hand included excellent function of the fingers with full flexion and extension. The impression was suspected carpal tunnel syndrome. He received a cortisone injection in the carpal tunnel and a brace to wear at night. During an August 2010 follow-up visit, he stated that the injection and brace had not significantly improved his symptoms. He complained of numbness in his middle finger. On examination, he had good sensation throughout all aspects of the upper extremity with the exception of an altered sensation of the middle digit of the right hand. The assessment was carpal tunnel syndrome of the right upper extremity. In his November 2010 substantive appeal, the Veteran expressed his understanding that his "right hand/finger" was rated based on the scar on his finger. He stated that the scar was "more than just tender." He could not touch the scar without pain, adding that his hand was constantly in pain. He believed that his hand should also be rated for the "internal difficulties" of his hand. He stated that writing caused extreme pain, he could not make a fist or fully extend his finger, and he had frequent hand cramping and severe loss of grip [strength]. He stated that the frequent, sharp, shooting pains in his hand limited his ability at work and severely disabled him. He reported that he had recently visited a hand specialist, who diagnosed carpal tunnel syndrome. The RO construed his statement as a claim of entitlement to service connection for right hand carpal tunnel syndrome. In January 2011 correspondence received in support of his claim for carpal tunnel syndrome, the Veteran stated that his doctor told him that due to the limited use of his middle finger and the weakness of his hand, he developed carpal tunnel syndrome. He described constant cramps and dropping things and being unable to do his job on many occasions due to these symptoms. He also reported difficulty writing and driving for a long distance without rest. He stated that he had a very limited grip strength due to his "inability to straighten" his middle finger and that scar tissue on his hand and finger limited the use of his hand. In conjunction with his claim for carpal tunnel syndrome, the Veteran was afforded a VA peripheral nerves examination in April 2011 with an EMG/NSC performed in June 2011. (The examining neurologist completed the examination report in July 2011). The Veteran described a four to five-year history (since 2006 or 2007) of chronic, gradual hand pain with numbness when he grips something, drives, or writes. He indicated that he worked full time as a track worker for a railroad for the past four years and estimated that he had lost two weeks from work due to his service-connected back problems and his reported hand problems. Following a sensory and motor examination and EMG/NSC study, the diagnosis was digital nerve damage. Other objective examination findings included decreased finger flexion in the third digit of the right hand and a well-healed scar on the right third digit extending the length of the digit and limiting the full extension of the finger due to scarring. The neurologist commented that although the EMG did not show electrical evidence of digital nerve damage, the clinical examination was consistent with this. She indicated that no carpal tunnel syndrome was found. In a July 2011 rating decision, the RO denied the claim for carpal tunnel syndrome of the right hand. The RO notified the Veteran and enclosed a copy of the decision in a separate letter dated in July 2011. He did not appeal the decision. In July 2012 the Veteran testified that in the past 12 months, he had been absent from his railroad job as a track worker and driver for about one week due to his back disability. He stated that his right long finger disability affected his ability to grip the steering wheel at work, to use tools, and caused severe hand cramps. He indicated that he needed to take breaks to massage his hand. He stated that although his disability was characterized as a tender scar, he had hardly any feeling on that finger except at the tip. After reviewing the medical and lay evidence of record, the Board finds that the Veteran's flexor tenosynovitis of the right long finger with scar is manifested by some loss of motion and a 7cm well-healed scar that was tender on examination in December 2009. These findings are consistent with the 10 percent rating currently assigned. A higher rating is not warranted for the right long finger disability under Diagnostic Code 7804 because it does not involve two or more painful scars. In addition, the medical evidence does not reflect the existence of any associated scar of a size or that involves any symptoms or pertinent characteristics so as to warrant the assignment of a rating in excess of 10 percent under any pertinent provision of § 4.118. See, e.g., 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Similarly, objective medical evidence does not reflect impairment of the right (dominant) long finger such that a compensable rating is warranted based on limitation of motion. For example, while there was some objective evidence of loss of motion with pain of the right long finger on VA examination in December 2009, range of motion of the right long finger was characterized as "excellent" on private examination in August 2010 with no objective evidence of pain reported. (Diagnostic Code 5229 allows for a 10 percent rating based on limitation of motion when there is a gap of 2.5 cm or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees, but such limitations have not been shown in this case.) Moreover, it is neither contended nor shown, that the Veteran's service-connected right long finger disability involves ankylosis (Diagnostic Codes 5216 through 5227), or that he has limitation of motion of the thumb associated with his service-connected right long finger (Diagnostic Code 5228). Therefore, the Board finds that the record presents no basis for assignment of a higher rating for the Veteran's flexor tenosynovitis of the right long finger with scar based on any potentially applicable Diagnostic Code. Accordingly, a rating in excess of 10 percent for flexor tenosynovitis of the right long finger with scar is not warranted. The Board acknowledges the Veteran's complaints regarding his right hand, including cramping, decreased grip strength, and numbness, which he reported began in 2006 or 2007, but emphasizes that the claim on appeal is limited to his service-connected flexor tenosynovitis with scar. The Veteran separately claimed entitlement to service connection for disability involving the right hand, he underwent VA examination for that claimed disability, the claim was denied, he was notified of the decision, and he did not timely appeal the decision. Accordingly, any claim involving the right hand beyond the 3d finger tenosynovitis with scar is not properly before the Board at this time. As a final matter, the Board has also considered whether the flexor tenosynovitis of the right long finger with scar presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted for the disability on appeal. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the disability level and symptomatology for his right long finger disability, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular rating is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. For all the foregoing reasons, the Board finds that the most probative and credible evidence does not support the assignment of an initial rating in excess of 10 percent for flexor tenosynovitis of the right long finger with scar at any point during the course of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, entitlement to a higher rating for flexor tenosynovitis of the right long finger with scar is not warranted, and the claim must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher initial rating, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial rating in excess of 10 percent for flexor tenosynovitis of the right long finger with scar is denied. REMAND After reviewing the claims file, the Board finds that additional development is required before deciding the claim for an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. During the July 2012 hearing, the Veteran testified that his private doctor had not prescribed bed rest for his back "on record," but did tell him to go home and stay in bed twice during the past year. He also stated that he recently returned to the doctor for back pain that radiated down his right leg. He indicated that the doctor believed his back was getting worse, adding that the last steroid injection he received did not help. The most recent medical evidence of record pertaining to the lumbar spine is dated in August 2010 and documents good flexibility of the lumbar spine with subjective pain and tenderness. The Veteran denied weakness or radicular-type symptoms to his lower extremities, and none was demonstrated on examination. Because the Veteran has indicated that his symptoms have increased in severity and identified new, more recent treatment for his back disability, the claim must be remanded to request those records. In addition, the Veteran should be afforded a VA examination to evaluate the current severity of his degenerative disc disease of the lumbar spine and any neurologic impairment. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to the claim for a higher rating for his low back disability. The AOJ should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. 2. Upon completion of the above, the AOJ should arrange for the Veteran to be scheduled for an examination by a clinician with the appropriate expertise to assess the claim. The claims folder must be reviewed by the examiner as part of the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. The examiner should include range-of-motion studies of the thoracolumbar spine and identify all functional losses, such as due to pain, weakness, fatigability, incoordination, flare-ups, etc. All functional losses should be equated to additional loss of motion (beyond what was shown clinically). Additionally, all periods of prescribed bed rest due to incapacitating episodes should be documented (length and frequency), and any radiculopathy or other nerve impairment due to the disc disease should be identified. For each nerve affected or seemingly affected, the nerve impairment should be described as slight, moderate, moderately severe, severe, or complete paralysis. Detailed explanations for the findings should be included. 3. The AOJ must ensure that the medical examination report complies with this remand. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issue remaining on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs