Citation Nr: 1310137 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-25 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable disability rating for residuals of right hand blast injury. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from January 1980 to September 1992, and from November 2001 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2013; a transcript of the hearing is associated with the claims file. As a procedural matter, the Board notes that the Veteran submitted additional evidence in February 2013, after the RO last considered the claim; however, he waived his right to have the evidence considered by the Board. FINDING OF FACT Throughout the rating period on appeal, the Veteran's residuals of a right hand blast injury have been manifested by objective evidence of pain, to include splits in the middle finger nail, as well as tenderness; the disability has not resulted in any limitation of motion or amputation of the right hand or fingers. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no more, for residuals of right hand blast injury have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Notice & Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by correspondence sent in November 2008, prior to the initial adjudication of the claim. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent VA outpatient treatment records has been completed. In addition the Veteran has been afforded an appropriate VA examination. Further, the Veteran was provided an opportunity to testify before the Board. The Veteran has not identified any outstanding evidence that should be obtained to substantiate his claim. The Board is also unaware of any such evidence. Moreover, at the hearing before the undersigned, the Veteran stated that he was only seeking a 10 percent rating for the disability at issue. As explained below, the Board has determined that a 10 percent rating is warranted for the disability throughout the period of the claim. In sum, the Board also is satisfied that the originating agency has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability, except as noted below. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, the Veteran sustained a blast injury of his right hand in February 1983, during service, and ultimately underwent debridement and surgical closure later that month. In a March 1993 rating decision, the RO granted service connection for residuals of such injury, to include scars and mild deformity of the Veteran's right middle finger; a noncompensable disability rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5226, effective October 1, 1992, the day following the Veteran's separation from his first period of active service. The Veteran submitted the instant claim for a compensable rating in August 2008. A February 2009 VA examination report notes that the Veteran reported decreased right hand strength and dexterity, as well as pain. He reported that he experienced significant effects on his occupation as a real estate manager because he could not write for long periods of time. Examination revealed an absent nail of the right middle finger. Ranges of motion of the right hand index finger, long finger, ring finger, little finger, and thumb were normal, without any evidence of pain on active or repetitive motion. There was no evidence of amputation of a digit or part of a digit. There was no evidence of ankylosis of one or more digits. There was no evidence of a deformity of one or more digits. There was no evidence of decreased strength for pushing, pulling, or twisting. There was no evidence of decreased dexterity for twisting, probing, writing, touching or expression. Upon review of the claims file, the examiner diagnosed residuals of a right hand blast injury with associated pain. The examiner further noted that such pain had significant effects on the Veteran's occupation as a real estate manager; specifically, that the Veteran was unable to write for long periods of time. At the February 2013 hearing before the undersigned the Veteran testified that his right hand fingers had progressively worsened over time. He further stated that his right hand was his dominant hand. He asserted that his middle finger "is the worst one." He explained that when he initially injured his middle finger, he subsequently received stitches under his nail bed, which negatively impacted the growth pattern of his nail. He stated that his middle finger scar ran under his nail bed and that, every two or three weeks, his nail got brittle and split. He further asserted that when his nail split, he experienced tenderness, which made his finger essentially unusable. He explained that when his nail is split, he has to avoid getting it wet. He also explained that he would not pick up a gallon of milk with his right hand because his middle finger nail bed would explode and bleed. He stated that he did not seek medical treatment for his finger because he treats it himself with first aid ointment. He further stated that although his middle finger nail was not tender at the time of the February 2009 VA examination, he often experienced tenderness when his nail split, as well as when his finger got caught on fabric. He concluded that when his right middle finger nail healed it was less tender, but it was tender again, when his nail would split a few weeks later. In February 2013, the Veteran submitted photographs of his right hand. The photographs show his right middle finger with a split and half missing nail. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's residuals of right hand blast injury are currently rated as noncompensable under DC 5226, the diagnostic code for unfavorable or favorable ankylosis of the long finger. 38 C.F.R. § 4.71a, DC 5226 (2012). Under DC 5226, unfavorable or favorable ankylosis of the long finger warrants a maximum 10 percent disability rating. The Note under DC 5226 provides that consideration should be made as to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. A superficial scar that is painful on examination that is not associated with underlying soft tissue damage, warrants a 10 percent disability rating. 38 C.F.R. § 4.118, DC 7804, Note 1 (2007). In such case, a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. Note 2 Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The evidence of record demonstrates that the Veteran's residual injury of his right hand blast includes right middle finger nail splitting and tenderness. In this regard, the Board notes that the aforementioned VA examination does not demonstrate any limitation of motion of the Veteran's right hand or fingers, nor does it show any evidence of ankylosis or amputation of one or more digits. Further, there is no evidence of decreased strength or dexterity of the hand. As such, the Veteran does not warrant a compensable rating under 38 C.F.R. § 4.71a, DC 5226. Based on the foregoing medical and lay evidence, the Board finds that the Veteran warrants a 10 percent disability rating, but no more, for his service-connected residuals of a right hand blast injury disability under DC 7804. In this regard, the record demonstrates objective evidence of right middle finger pain. Specifically, on VA examination in February 2009, the examiner noted that the Veteran had an absent nail on his right hand middle finger; the examiner diagnosed residuals of a right hand blast injury with associated pain. Further, photographs submitted by the Veteran in February 2013 show his right middle finger with a split and half missing nail. In addition, during the February 2013 hearing before the undersigned, the Veteran testified that although he did not experience tenderness of his right middle finger at the time of the February 2009 VA examination, he often experienced tenderness when his nail splits, which occurred approximately every two or three weeks. There is schedular basis for assigning more than the 10 percent rating granted herein. In this regard, the evidence of record does not show the Veteran has any limitation of motion of his right hand or fingers, nor is there evidence of a deep scar with an area or areas exceeding 12 square inches. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a rating in excess of 10 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds that the rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. The competent medical evidence of record shows that his residuals of a right hand blast injury disability are primarily manifested pain. The applicable diagnostic code used to rate the Veteran's disability provides for ratings based on pain, as well as limitation of motion. The disabling effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. ORDER Entitlement to a disability rating of 10 percent, but no more, for residuals of right hand blast injury is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs