Citation Nr: 1309580	
Decision Date: 03/21/13    Archive Date: 04/01/13

DOCKET NO.  08-24 792	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an initial compensable disability rating for residuals of a shrapnel injury to the right hand with retained metallic foreign objects.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

David Gratz, Counsel






INTRODUCTION

The Veteran served on active duty from November 1962 to July 1966 and from May 1967 to October 1969, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal and the Combat Action Ribbon.

This appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision drafted by the Department of Veterans (VA) Affairs Regional Office (RO) in Augusta, Maine and issued by the RO in Detroit, Michigan that granted service connection for residual scars of the right hand with retained metallic fragments and assigned a noncompensable rating effective November 17, 2006.

In July 2011, the Veteran submitted a waiver of Agency of Original Jurisdiction (AOJ) consideration of additional evidence submitted after the July 2011 supplemental statement of the case.  38 C.F.R. § 20.1304(c) (2012).  Therefore, the Board may properly consider such newly received evidence.

In July 2010, the Board remanded the claim.  The case has returned to the Board for appellate review.


FINDINGS OF FACT

1.  The Veteran has moderate limitation of motion of the intrinsic muscles of the right hand.

2.  The Veteran has mild incomplete paralysis of the lower radicular group of peripheral nerves of the right hand.

3.  The Veteran's right hand scars are well-healed, superficial, very faint, not elevated, not depressed, not tender, not inflamed, not inflexible, and not disfiguring.



CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent disability evaluation, and no higher, for moderate limitation of motion of the intrinsic muscles of the right hand have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.56, 4.73, Diagnostic Code 5309 (2012).

2.  The criteria for an initial 20 percent disability evaluation, and no higher, for mild incomplete paralysis of the lower radicular group of peripheral nerves of the right hand have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Code 8512 (2012).

3.  The criteria for an initial compensable rating for scars of the right hand have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.118, Diagnostic Code 7805 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  This claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, 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).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service, private, and VA treatment records have been obtained.  He has been provided with VA examinations, including an adequate VA examination in April 2010, in connection with his present claim.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Finally, this claim was remanded by the Board for additional development in July 2010.  There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has obtained additional VA treatment records, contacted the Veteran to obtain his assistance in identifying any other medical treatment records in August 2010, and provided the Veteran with a new examination of his right hand in November 2010.

Analysis

The Veteran contends that he is entitled to an initial compensable disability evaluation for his residuals of a shrapnel injury to the right hand with retained metallic foreign objects.  In his August 2008 substantive appeal, the Veteran clarified that:

The problem the VA is having is that they are evaluating scars, not residuals of Shell Fragment Wounds...with fragments retained....I have no grip strength without discomfort....Scars?  They are not the problem.  I believe that with retained fragments, and those fragment[s] affecting [the] function of my hand, I am entitled to a moderate disability rating for my right (major) hand.

At his November 2010 VA examination, the Veteran reported that he continues to have residual small scars and retained foreign fragments in the right hand related to his shrapnel injury in service.  The Veteran reported that he has been having stiffness (including for 1/2 hour each morning), numbness around the scars, pain, and discomfort of the small joints of the right hand for the past 41 years.  He noted that he takes Advil as needed, and cannot lift weights greater than 5 pounds.

Furthermore, in a July 2011 letter, the Veteran requested consideration of 38 C.F.R. § 4.56(d)(2)(ii), for a moderate disability of muscles.  He reported that his right hand is painful and sometimes freezes up, making it difficult to sign his name without the pen falling out of his hand.

Additionally, in September 2011, the Veteran's spouse informed VA that the Veteran cannot squeeze his hand tight, is losing feeling in his hand, drops things due to numbness of the hand, and awakens at night due to hand pain.  Also in September 2011, the Veteran's son informed VA that the Veteran has pain, discomfort, and weakness in his right hand.

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).  The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35, (1993).

Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected hand disorders.

Diagnostic Codes (DCs) 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the hand.  38 C.F.R. § 4.71a, DCs 5003, 5010.  Diagnostic Code (DC) 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003.

Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved.  When 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 group or minor joint group affected by limitation of motion.  In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations.  A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations.  38 C.F.R. § 4.71a, DCs 5003, 5010 (2012).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

Additionally, 38 C.F.R. § 4.73, Diagnostic Code 5309, pertains to the intrinsic muscles of hand, namely: the thenar eminence; short flexor, opponens, abductor and adductor of thumb; hypothenar eminence; short flexor, opponens and abductor of little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei.  The rating assigned is based on limitation of motion, with a minimum rating of 10 percent.

Additionally, 38 C.F.R. § 4.118, Diagnostic Code 7805 pertains to scars.  Any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 (e.g., scars to the head, face, or neck; nonlinear; and unstable or painful) are to be evaluated under an appropriate diagnostic code.

Additionally, 38 C.F.R. § 4.124a, Diagnostic Code 8512 pertains to diseases of the peripheral nerves-specifically, the lower radicular group.  A 20 percent rating applies where there is mild incomplete paralysis of the major hand.  The term "incomplete paralysis" 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.  A 40 percent rating applies where there is moderate incomplete paralysis of the major hand.  A 50 percent rating applies where there is severe incomplete paralysis of the major hand.  A 70 percent rating applies where there is complete paralysis of the major hand, including all intrinsic muscles of hand, and some or all of the flexors of wrist and fingers, and substantial loss of use of the hand.

The Veteran underwent a Compensation and Pension examination in May 2007.  The examiner noted scarring to the first web space of the right hand and scarring on the second finger of the right hand.  The examiner noted that x-rays of the right hand showed "[m]ultiple small metallic foreign bodies in the soft tissue of lateral aspect of hand and the index finger."  The examiner opined that the scars were not unstable or painful, and that the fragments did not prevent the Veteran from doing his normal personal or vocational activities.  However, the examiner did not identify and describe the residual orthopedic, neurologic and muscle impairment.

The Veteran submitted two narrative reports from Dr. G, D.O., dated December 2007 and February 2008.  In December 2007, Dr. G noted that the Veteran has "arthritis at the MP joint of his right middle finger causing some restricted range of motion and also he has significant shrapnel adjacent to his thumb in the thenar eminence area and also in the soft tissues of his right index finger, there are at least two pieces of shrapnel, one of which may be in a tendon sheath and the other which is more superficial."  In February 2008, Dr. G noted that the shrapnel is "in close proximity to the flexor tendons on the volar surface of his right index finger and superficial enough in his thenar muscles that the folks at our local MRI have refused to allow him to have an MRI because of the potential damage to his hand structures."

The Veteran underwent a second Compensation and Pension examination in November 2010.  The examiner reviewed the claims file and medical records prior to the examination.  The VA examiner found that the Veteran's right hand muscle power was slightly diminished, and his right hand grip was 4 out of 5.

X-rays of the right hand revealed mild-to-moderate degenerative changes involving the base of the first metacarpal, trapezium and trapezoid complex; minimal degenerative changes of the DIP joints; hypertrophic changes involving the head of the third metacarpal; and numerous tiny radiopaque foreign bodies in the soft tissues of the radial aspect of the head of the right hand.

The Veteran's right hand small joints had no swelling, redness, warmness, or crepitus; the movements of those joints were within the normal range, including on repetitive motion.  Circulation was intact, and deep tendon reflexes were normal.

The examiner further found that the Veteran's right hand scars are well-healed, superficial, very faint, not elevated, not depressed, not tender, not inflamed, not inflexible, and not disfiguring.  The examiner noted that sensations are slightly diminished over and around the scars.

After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that an initial disability rating of 10 percent is warranted for the Veteran's restricted range of motion, as reported by the Veteran and his family, and as documented by Dr. G in December 2007.  38 C.F.R. § 4.73, Diagnostic Code 5309.  The Board has considered the Veteran's request for consideration of 38 C.F.R. § 4.56(d)(2)(ii), for a moderate disability of muscles, and finds that Diagnostic Code 5309 is for application in this instance because the intrinsic muscles of the Veteran's right hand-as opposed to flexion or extension of the wrist, fingers, and thumb-most nearly reflects the clinical descriptions of his disability.  Furthermore, while the Board has considered the November 2010 VA examiner's finding of only slightly diminished right hand muscle power, the Board finds that the descriptions provided by the Veteran, his family, and Dr. G are in equipoise, and, furthermore, the minimum 10 percent is required for limited motion under Diagnostic Code 5309.  38 C.F.R. §§ 4.3, 4.73.  Therefore, a 10 percent rating is granted.

A rating in excess of 10 percent is not warranted under 38 C.F.R. § 4.73, Diagnostic Code 5309 because the Veteran has reported that the disability of function of his right hand is moderate, which, for analogous muscle groups of the forearm and hand, warrants a 10 percent rating.  38 C.F.R. § 4.20.  Moreover, there is no evidence showing a moderately-severe or severe disability of function of the muscles of the right hand.

The Board further finds that an additional initial disability rating of 20 percent is warranted under  38 C.F.R. § 4.124a, Diagnostic Code 8512 for mild incomplete paralysis (impaired function) of the lower radicular group of peripheral nerves.  As noted above, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The Board assigns this rating based on the Veteran's symptoms of his right hand numbness, pain, and freezing up.

A rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8512 because there is no evidence showing moderate or severe incomplete paralysis, or complete paralysis.

The Board further finds that an additional disability rating for the Veteran's right hand scars is not warranted because, based on the November 2010 VA examiner's report, there is no evidence that they are nonlinear, unstable, or painful; additionally, there is no evidence of record showing that the Veteran's right hand scars are otherwise qualifying for a compensable rating under 38 C.F.R. § 4.118.

The Board has found no other diagnostic codes which would provide higher or separate ratings for the Veteran's right hand disabilities, based on the evidence of record-including the November 2010 VA examiner's report.  Likewise, no evidence to support higher staged ratings is of record.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's right hand disabilities, which include a moderate muscle disability with limitation of motion, and mild incomplete paralysis (impaired function) of the lower radicular group of peripheral nerves.  The rating criteria are therefore adequate to evaluate the right hand disabilities and referral for consideration of an extraschedular rating is not warranted.

Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Veteran has not reported that he is unemployable due to his right hand disabilities, and the November 2010 VA examiner opined that the Veteran's right hand disabilities do not likely prevent him from performing jobs with sedentary work.  Thus, TDIU is not raised by the record.


ORDER

An initial 10 percent disability rating for moderate limitation of motion of the intrinsic muscles of the right hand is granted, subject to the applicable criteria governing the payment of monetary benefits.

An initial 20 percent disability rating for mild incomplete paralysis of the lower radicular group of peripheral nerves is granted, subject to the applicable criteria governing the payment of monetary benefits.

An initial compensable evaluation for scars of the right hand is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs