Citation Nr: 1309693 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-09 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating higher than 10 percent for residuals of fracture to the 1st metacarpal joint of the left hand. (The issue of whether the Veteran timely requested a waiver of recovery of overpayment in the amount of $13,862.00 is addressed in a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran now resides in Indiana, so the matter is now handled by the RO in Indianapolis, Indiana. FINDING OF FACT The Veteran's residuals of fracture to the 1st metacarpal joint of the left hand is not manifested by limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for residuals of fracture to the 1st metacarpal joint of the left hand are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.10, 4.40, 4.59, 4.71a, Diagnostic Codes 5010, 5224, 5228 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). In a claim for an increased evaluation, the VCAA requires generic notice, that is, namely, information sent to the Veteran indicating that he or she must submit evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran and VA's respective duties for obtaining evidence. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records, post-service VA, and private medical records with the claims folder. Additionally, the Veteran was afforded VA examinations. Virtual VA records have been reviewed. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Entitlement to a Rating Higher Than 10 Percent for Residuals of Fracture to the 1st Metacarpal Joint of the Left Hand The Veteran submitted a claim in June 2007 seeking an increased rating for his residuals of fracture to the 1st metacarpal joint of the left hand. He asserts his disability is more severe than what the current rating represents. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's residuals of fracture to the 1st metacarpal joint of the left hand is currently assigned a 10 percent disability evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5224. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012); thus, the hyphenated diagnostic code in this case indicates that arthritis due to trauma under Diagnostic Code 5010 is the service-connected disorder and that ankylosis of the thumb under Diagnostic Code 5224 is a residual condition. The November 2004 rating decision that assigned this 10 percent rating contains the explanation that a 10 percent rating was found to be warranted based on painful limitation of motion of the left thumb. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis, due to trauma, substantiated by x-ray findings, will be rated as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Codes for the specific joint or joints involved. A 10 percent rating is warranted when limitation of motion under the appropriate diagnostic code is non-compensable or when there is x-ray involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is permitted when there is x-ray evidence of degenerative arthritis involving 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010. There is no evidence of occasional incapacitating exacerbations as the result of the Veteran's left thumb. Furthermore, the Veteran has not asserted that he experiences incapacitating exacerbations. Therefore, a rating of 20 percent based on Diagnostic Code 5010 is not established. Alternatively, in 38 C.F.R. § 4.71a, the rating schedule provides for rating unfavorable ankylosis of multiple digits (Diagnostic Codes 5216 through 5219), favorable ankylosis of multiple digits (Diagnostic Codes 5220 through 5223), ankylosis of individual digits (Diagnostic Codes 5224 through 5227), and limitation of motion of individual digits (Diagnostic Codes 5228 through 5230). Some diagnostic codes pertaining to impairment of the hand and fingers apply different disability ratings based upon whether the major or minor arm is affected. 38 C.F.R. § 4.71a, Codes 5213 through 5230. The diagnostic codes applicable in this case, however, which pertain to limitation of motion of individual digits, apply the same rating for both the minor and major hand. Note (5), preceding the codes for rating the digits, provides that if there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes that Diagnostic Code 5224 is for ankylosis of the thumb, while Diagnostic Code 5228 is for limitation of motion of the thumb. As there is no evidence that the Veteran's thumb is ankylosed, the Board finds Diagnostic Code 5228 to be more appropriate based on the Veteran's symptoms. Under Code 5228, limitation of motion of the thumb, the percentage rating is based on the size of the gap between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A noncompensable rating is assigned when there is a gap of less than one inch (2.5 cm.). A 10 percent rating is assigned when there is a gap of one to two inches (2.5 cm. to 5.1 cm.), and a 20 percent rating is assigned when there is a gap of more than two inches (5.1 cm.). The Veteran was afforded a VA examination for his left hand in September 2007. He reported symptoms such as pain, weakness, swelling, locking, and catching of the left hand. Physical examination revealed a dorsiflexion of 60 degrees, palmar flexion of 45 degrees, radial deviation of 10 degrees, and ulnar deviation of 30 degrees. It was noted the joint was not painful on motion. There was objective evidence of tenderness, weakness, and abnormal movement. The examiner noted that the Veteran complained of significant pain and tenderness about the 1st carpometacarpal (CMC) joint of the left hand and that he had some weakness with grip strength and range of motion due to pain. There was no ankylosis present and no inflammatory arthritis noted. X-rays demonstrated no acute fracture of dislocation, but there were stable degenerative changes at the first carpometacarpal joint. The Veteran was diagnosed with severe degenerative joint disease of the 1st carpometacarpal joint of the left hand. VA treatment records were reviewed. In November 2008, the Veteran sought treatment and it was noted that the main reason he was there was because he had an appeal for his left hand pain. He requested an x-ray to present as evidence in his appeal. An x-ray demonstrated mild degeneration and an old healed traumatic injury. The Veteran was afforded a VA examination in June 2009. He reported an overall decreased in hand strength, as well as pain and swelling of the left thumb. The Veteran stated that he has difficulty with any activity involving the thumb, including riding his motorcycle, hunting, and playing the guitar. Examination revealed there was no gap between the thumb pad and the fingers, although there was objective evidence of pain. There was also objective evidence of pain following repetitive motion. There was no amputation of a digit or part of a digit and no ankylosis of one or more digits. The examiner noted the Veteran had swelling and decreased motion at the 1st carpometacarpal joint as well as decreased grip strength and pinch. The examiner noted decreased dexterity as the Veteran has difficulty with any activity involving the thumb, due to weakness and pain. X-rays demonstrated severe degenerative joint disease of the carpometacarpal joint of the left hand with complete joint space loss. The Veteran was afforded a VA examination in November 2012. Examination revealed there was limitation of motion or evidence of painful motion of the thumb and index finger of the left hand. There was a gap between the thumb pad and the fingers when attempting to oppose the thumb of 1 to 2 inches. The examiner noted that pain began at a gap of 1 to 2 inches. There was a noted gap of 1 inch between the index finger and the long finger as well, with painful motion beginning at a gap of less than 1 inch. The examiner noted that there was no limitation of extension or evidence of painful motion for the index finger or long finger. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation of motion for any fingers post-test. Post-test, there was a gap of 1 to 2 inches between the thumb pad and the fingers. The examiner noted that the Veteran had less movement than normal of the thumb, long finger, and index finger of the left hand, as well as pain o n movement of the thumb and index finger. He also had tenderness or pain to palpation for joints or soft tissue of the left hand. Muscle strength was 4/5 for the left hand. There was no ankylosis noted. X-rays demonstrated degenerative or traumatic arthritis of the left hand. The examiner noted that the Veteran's hand affected his ability to work in that the Veteran had decreased grip strength, difficulty writing, grasping, or holding things with the left hand. Importantly, the Board notes that service connection for residuals of a middle finger injury of the left hand was denied in a September 2009 rating decision. The Veteran has not appealed this decision. Additionally, service connection has not been claimed and/or granted for the Veteran's index finger. Therefore, these matters and associated symptoms are not before the Board. The Veteran has not demonstrated that he has a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Nor has he demonstrated ankylosis of the thumb. The evidence of record indicates that the Veteran experiences, at most, a gap between 1 to 2 inches. See November 2012 VA examination. The Board notes that this reported motion does not support a schedular 20 percent rating for the left thumb. 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran's complaints of pain, weakness, and swelling. These complaints are well documented in the Veteran's written statements; however, the pertinent medical evidence reflects that the assigned 10 percent rating properly compensates the Veteran for the extent of any such loss during the period in question. During the November 2012 VA examination, after three repetitions, there was no additional loss of motion, and the gap between the thumb pad and the fingers was still 1 to 2 inches. Thus, there is no medical evidence that the Veteran's pain was so disabling as to effectively result in a gap larger than 2 inches between the thumb pad and fingers with the thumb attempting to oppose the fingers, as required for assignment of the next higher rating under Diagnostic Code 5228. The Veteran has continuously reported functional loss due to pain, swelling, and weakness, and the most recent VA examination noted that there was evidence of decreased strength. The Board acknowledges the Veteran's statements regarding the severity of his right thumb disability, and further notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Board places significantly more weight on the objective clinical findings reported during examinations than the Veteran's statements, as the Veteran is not shown to have the requisite training to determine the severity level of his service-connected residuals of fracture to the 1st metacarpal joint of the left hand. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Hence, while the Veteran's complaints have been considered, they are not considered more persuasive on these points than the objective medical findings, which, as indicated above, do not support the assignment of higher ratings at any point, and pursuant to any applicable criteria, for the period in question. The Board has also considered whether any additional Diagnostic Code would result in a higher rating; however, there is no basis for an increased rating under any applicable Diagnostic Codes. There is no amputation (Diagnostic Code 5152), and there is no ankylosis (Diagnostic Code 5224). Accordingly, a rating in excess of 10 percent is not warranted for the residuals of fracture to the 1st metacarpal joint of the left hand. As the preponderance of the evidence is against the claim for increase, the benefit-of-the-doubt standard does not apply. 38 C.F.R. § 5107(b). Extraschedular Consideration The Board finds that the Veteran's left thumb disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his thumb is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. Entitlement to a Total Disability Rating Based on Individual Unemployability (TDIU) Finally, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Nevertheless, in the instant case, the evidence of record has not shown that the Veteran was unemployable due to the service-connected disability discussed above; in fact, the record shows that the Veteran is receiving Social Security benefits for depression and a personality disorder. During a March 2004 VA examination, the Veteran indicated that he used to have a window washing business. Although VA examinations noted that his left hand disability affects his ability to write and hold things, the Board notes that the Veteran has not asserted it prevents him from working. In fact, the Veteran noted in his VA Form 9 that his left hand prevents him from using tire tools and holding knives to skin squirrels or deer. There was no assertion that his left thumb disability prevents him from being employed or maintaining employment. Therefore, consideration of a claim for TDIU is not required. ORDER Entitlement to a rating higher than 10 percent for residuals of fracture to the 1st metacarpal joint of the left (major) hand is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs