Citation Nr: 1308636 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-33 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial compensable rating for status post fracture of the fourth finger, left hand with degenerative joint disease. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for status post fracture of the fourth finger, left hand with degenerative joint disease and assigned a noncompensable (0 percent) rating from September 30, 2009. A video-conference hearing was held in January 2012 with the Veteran in Muskogee, Oklahoma, before the undersigned Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDING OF FACT The Veteran's status post fracture of the fourth finger is manifested by x-ray findings of degenerative joint disease and complaints of pain. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for status post fracture of the fourth finger, left hand with degenerative joint disease have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5230 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided in October 2009 (before service connection was granted) was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, in the Veteran's July 2010 notice of disagreement (NOD), he appealed the initial disability rating assigned and is presumed to be seeking the maximum benefits available under the law for the appealed issue. Dingess; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a July 2010 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist The Veteran's service treatment records, VA treatment records, and hearing transcript have been associated with the claims file. In addition, the Veteran was afforded VA examination as part of his claim. 38 C.F.R. § 3.159(c)(4). 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 in this case in January 2010 is adequate as it contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and records the relevant findings for rating the Veteran's left ring finger condition. Although the examination was conducted in January 2010, the Veteran did not indicate at his January 2012 hearing that his condition has worsened since his prior examination. Therefore, a new examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the mere passage of time is not a basis for requiring of new examination). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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 rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The Veteran is assigned a noncompensable rating under Diagnostic Code 5230. Under that code, any limitation of motion of a ring finger or little (fifth) finger, of the major or minor hand, is rated at 0 percent. Under Diagnostic Code 5227, if a major or minor ring or little finger is in unfavorable or favorable ankylosis, the rating to be assigned also is 0 percent. 38 C.F.R. § 4.71a (2012). The Veteran's condition is also manifested by degenerative joint disease. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. Id. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45 (2012). B. Evidence and Analysis The Veteran was afforded a VA examination in January 2010. He reported pain in the left ring finger which occurred once a week for a period of less than an hour. Pain was localized, and described as squeezing, aching, and cramping. Pain was rated as 2/10 in severity, exacerbated by physical activity and relieved with rest. The Veteran could tie his shoelaces, fasten buttons, and tear a piece of paper without difficulty. On examination, measurement between the tips of the left thumb and left ring finger was 0 cm. Range of motion of the left ring finger was within normal limits, and not additional limited by pain, fatigue, weakness, incoordination, or lack of endurance following repetitive testing. Ankylosis was not present. X-rays revealed degenerative joint disease in the left ring finger. The examiner noted that the condition had no effect on the Veteran's daily activities. The Veteran testified at a Board hearing in January 2012. He reported experiencing pain and popping associated with his condition. He had trouble lifting and grasping objects of a certain size. He worked as a cashier and stocker, and his duties included unloading a truck once per week. Over the course of this unloading, his finger would start cramping up. He treated his condition with over-the-counter medication. The Veteran's VA treatment records do not include any entries relevant to his left ring finger. As noted above, the rating schedule does not provide a compensable rating under Diagnostic Code 5230 for limitation of motion of the ring finger. Notably, even ankylosis of the ring finger, which the Veteran does not have, is not rated as compensable. A compensable rating for arthritis is possible under Diagnostic Code 5003. Compensable ratings under that code are predicated upon arthritis of major joints or minor joint groups. Under 38 C.F.R. § 4.45, a minor joint group is defined as multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities. Here, however, the Veteran's service-connected condition is a single finger, not multiple involvements of the joints in the hand. Regardless, with any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59. The intention of the schedule is to recognize painful motion with joint pathology as productive of disability and to recognize an actually painful joint, due to healed injury, as entitled to at least the minimum compensable rating for the joint. In light of the x-ray findings of degenerative joint disease in the left ring finger and complaints of pain, a 10 percent disability rating is warranted under DC 5003. See 38 C.F.R. §4.59. In the absence of x-ray evidence of the involvement of 2 or more major joints or two or more minor joint groups, a rating in excess of 10 percent is not warranted under DC 5003. In evaluating the Veteran's claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left ring finger condition with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. Limitation of motion, pain, and arthritis are specifically contemplated by the rating schedule. Symptoms of pain and popping are implicit in the evaluation of the Veteran's functional limitations. See 38 C.F.R. § 4.40, 4.45, 4.59. In sum, the Veteran's condition does not result in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER An initial 10 percent rating for status post fracture of the fourth finger, left hand with degenerative joint disease is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs