Citation Nr: 1315440 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-15 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a compensable disability rating for residuals of a fractured right fifth finger prior to April 20, 2011, and a disability rating higher than 10 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1956 to September 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York, which continued a noncompensable (0 percent) disability rating for residuals of fractured right fifth digit. A subsequent rating decision in August 2011 granted an increased disability rating of 10 percent, effective April 20, 2011. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher disability rating remains on appeal. In addition, because a staged rating was granted, the propriety of the assigned disability rating for each time period must be considered. In August 2012, the Veteran appeared at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is in the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU, including on an extraschedular basis, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the appeals period, the Veteran's residuals of right fifth digit fracture have included X-ray evidence of arthritis, but no compensable loss of motion. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no higher, have been met as of May 31, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5227, and 5230 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in May 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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 Veteran was provided with VA examinations with regard to his claim for an increased disability rating in May 2007 and April 2011. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an August 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, the RO granted a staged increased disability rating. After reviewing all of the evidence and considering the applicable rating criteria, the Board finds that a single disability rating should be applied for the entire appeals period. The Veteran's residuals of a fracture of the right fifth digit were originally rated using Diagnostic Code 5230, which applies to limitation of motion of the little finger. When the increased disability rating was granted, the assigned Diagnostic Code was changed to 5003, based on degenerative arthritis of a joint. Both of these Diagnostic Codes has been considered here, along with others which are potentially applicable, as discussed below. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5227 provides that where there is ankylosis of the ring or little finger, whether favorable or unfavorable, it should be rated as 0 percent disabling for either the major or the minor hand. A Note to the Diagnostic Code provides that VA should consider 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. Further requirements include that (i) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, VA should evaluate as amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto; (ii) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, VA should evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, VA should evaluate as unfavorable ankylosis; and, (iv) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, VA should evaluate as favorable ankylosis. Diagnostic Code 5230 provides that any limitation of motion of the ring or little finger is noncompensable, whether the major or minor hand is affected. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Other rating criteria which must be considered here are those of Diagnostic Code 5156, which apply to amputation of the little finger. A 20 percent disability rating is assigned where there is metacarpal resection (more than one-half the bone lost) in the major hand, and a 10 percent disability rating is assigned where the amputation occurs at the proximal interphalangeal joint or proximal thereto, without metacarpal resection. A Note to the Diagnostic Code provides that single finger amputation ratings are the only applicable ratings for amputations of whole or part of single fingers. Facts The Veteran filed for service connection for his right fifth finger disability in 2004. A rating decision issued in early May 2005 granted service connection and assigned a noncompensable (0 percent) disability rating. The Veteran filed a notice of disagreement with the assigned disability rating in late May 2006, after the one year appeals period had ended. As a result, the notice of disagreement was properly construed as a claim for an increased disability rating. A September 2007 rating decision continued the noncompensable rating, and the Veteran filed a timely notice of disagreement with that rating decision in November 2007. Another rating decision was issued in March 2008 which confirmed and continued the assigned disability rating. The Veteran was afforded a VA examination of his right fifth finger in March 2005, in connection with his original claim of service connection. At that time, the Veteran complained of pain off and on since the injury in 1959, with increased pain in the previous six to ten years. The pain was now constant and achy, and he experienced flare-ups of pain about once a week, usually precipitated by squeezing or gripping something with his right hand. During the flare-ups he had additional limitation of motion and impairment of the activities of daily living due to his pain. Physical examination showed a bony enlargement in the base of his right fifth finger with tenderness but no erythema, swelling, or herniation. Range of motion testing showed 75 degrees of motion in the metatarsophalangeal joint, 80 degrees of motion in the proximal interphalangeal joint, and 50 degrees of motion in the distal interphalangeal joint. There was evidence of mild atrophy of the right hand intrinsic muscles, including decreased grip strength. There was no flexion deformity and no gap between the tip of the thumb and the finger. The examiner diagnosed residual right fifth metacarpal base fracture with degenerative joint disease. X-rays of the Veteran's right hand, taken in March 2006, showed mild degenerative changes and slight spurring at the fifth metacarpocarpal articulation. On May 2007 VA examination, the Veteran reported increasingly severe pain in his right fifth finger, with an inability to use scissors or do push-ups and difficulty lifting a pot of coffee, opening jars, and using screw-drivers. He denied paresthesias, but did report some numbness over the fracture site. The Veteran reported decreased strength in his right hand, but also stated that he had arthritis in both hands. On physical examination, there was tenderness over the fifth metacarpal proximally, with gross motion at the fracture site. The Veteran lacked full flexion of the right ring and right small fingers. Range of motion testing showed 40 degrees of flexion at the metacarpophalangeal joint, 55 degrees at the proximal interphalangeal joint, and 25 degrees at the distal interphalangeal joint. He was unable to flex the fifth finger to the proximal palmar crease and the exam inaner noted mild atrophy of the intrinsic muscles and the hypothenar eminence. The examiner reviewed an X-ray from February 2006 which showed prominent degenerative joint disease at the distal interphalangeal joint and mild flexion contracture of the fifth finger. On April 2011 VA examination, the Veteran reported having limited ability to bend his right fifth finger. He had constant pain of 7 or 8 in intensity with flare-ups brought on by using hand and power tools. The Veteran pointed out the flattening of the right fifth metacarpal head, explaining that he no longer had a knuckle in that area, and that he had a shortening of approximately half an inch of the right fifth finger. The examiner noted minimal shortening and radial deviation of the distal phalanx with Heberden node and hypothenar atrophy. The Veteran was unable to flex his fifth finger to the proximal palmar crease, with a gap of about one half inch. Range of motion testing showed 90 degrees of motion in the metacarpophalangeal joint with discomfort at 85 degrees, 90 degrees of motion at the proximal interphalangeal joint, and 30 degrees of flexion at the distal interphalangeal joint. A loss of prominence of the knuckle on the right fifth finger was noted. Repeated testing yielded no evidence of fatigability, lack of endurance, or gross incoordination. The examiner diagnosed mild degenerative changes in the right fifth digit. In a follow-up statement in August 2011, the examiner specified that only the Veteran's right fifth digit degenerative joint disease should be attributed to his military service. Arthritis in the rest of the fingers and joints of the right hand was not a result of service, since it existed in the left hand as well. At the August 2012 hearing, the Veteran testified that he experienced constant pain in his right fifth finger, sometimes to the point of being awakened from sleep. He had experienced problems using his right hand over the years because of the injury to his little finger. For instance, he had difficulty gripping a screwdriver and frequently dropped things. He did have movement in his finger, but it wasn't normal movement. The Veteran stated that it was like not having a finger there at all. He had lost the muscle in that part of his hand due to atrophy and as a result his grip was weaker, even though he was right-hand dominant. Analysis The Veteran's residuals of fractured right fifth digit were originally rated as noncompensable by the RO when service connection was granted. The Veteran appealed the assigned rating, but did not do so within the first year after the rating decision; as a result, his appeal was treated as a claim for increased disability rating. The date of receipt of that document, May 31, 2006, marks the beginning of the appeals period currently under consideration. In a rating decision in August 2011, the RO granted an increased disability rating of 10 percent for the right fifth digit, with an assigned effective date of April 20, 2011. While the RO provided no explanation of the decision to grant an increased disability rating for this disability, the Board notes that the assigned Diagnostic Code was changed at that time. Previously, the Veteran's disability was rated under Diagnostic Code 5230, which relates to limitation of motion and does not allow for a compensable rating for the fifth or little finger. The August 2011 rating decision reflected a 10 percent rating under Diagnostic Code 5003, which provides for a rating of 10 percent where there is X-ray evidence of arthritis in a major joint or a group of minor joints, but no compensable limitation of motion. In addition, the assigned effective date corresponds to that of the most recent VA examination. In reviewing the facts and evidence set forth above, the Board finds that the Veteran's right fifth digit disability has always been manifested by arthritis in the group of minor joints that make up that finger, as well as a limitation of motion in the metacarpophalangeal, proximal interphalangeal, and distal interphalangeal joints. Under Diagnostic Code 5003, where there is limitation of motion of the affected joint or joints which is not compensable, a 10 percent disability rating should be assigned. Under Diagnostic Code 5230 limitation of motion in the little or fifth finger is not compensable, regardless of severity of such limitation. As such, a 10 percent disability rating under Diagnostic Code 5003 is appropriate for the entire time period on appeal. A higher disability rating for the right fifth digit disability is not warranted in this instance. Indeed, the majority of the potentially applicable Diagnostic Codes provide for a maximum disability rating of 10 percent, whether the manifestation considered are limitation of motion (to include ankylosis). Diagnostic Code 5227 does provide for consideration of an ankylosed finger as equivalent to amputation based on the degree and position of ankylosis of each joint. However, in this case, the Veteran's finger joints are not ankylosed and the rating criteria are therefore not applicable. Although the Veteran has argued that the limitations of usage of his little finger make it as if he did not have a finger, this does not meet the regulatory requirements just described to be considered as the functional equivalent of amputation. Also, Diagnostic Code 5156 allows for a 20 percent disability rating where there has been amputation of the little finger with metacarpal resection, that is loss of more than one-half of the bone. In this instance, the Veteran's fifth or little finger has not been amputated and the criteria would not apply. In summary, the currently assigned 10 percent disability rating for residuals of fractured right fifth digit should cover the entire appeals period at issue. However, the criteria for a disability rating higher than 10 percent have not been met. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology with respect to the residuals of the fracture of the right fifth digit, and provide for higher ratings for more severe symptoms. The Board specifically notes that the Veteran's complaints in this case relate to his ability to grip specific items; however, the evidence shows this is as much related to his nonservice-connected arthritis in his other digits as to that of the fifth digit. As the disability picture relative to the service connected disability at issue here is contemplated by the Rating Schedule, the assigned schedular rating is adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a disability rating of 10 percent, and no higher, for residuals of fractured right fifth digit, are granted as of May 31, 2006. REMAND The matter for consideration by the Board was entitlement to an increased disability rating. The Court has held that TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). 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) (2012) 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). At his VA examinations and at the August 2012 hearing, the Veteran testified that he had taken a disability retirement from his last employment. He indicated that his work limitations included problems with his feet (he is currently service connected for pes planus) and difficult gripping or carrying things with his right hand. The nature of the Veteran's testimony and prior statements on examination raises the issue of entitlement to TDIU. The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). Regulations require that VA consider the combined effects of the service-connected disabilities have on employment. 38 C.F.R. § 4.16. Hence, the Board is required to obtain an opinion that considers the combined effects of the service-connected disabilities on employability. As the record does not include a VA opinion by a qualified medical professional that sufficiently assesses what impact the Veteran's service-connected disabilities, alone or in combination, have on his ability to obtain and maintain employment, a remand is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination with a qualified physician to determine the combined impact the Veteran's service-connected disabilities on his ability to obtain and maintain gainful employment. The examiner should review the claims folder and note such review in the examination report. The examiner should also consider the Veteran's level of education and employment experience. The examiner should provide an opinion as to whether the service-connected pes planus and residuals of fractured right fifth digit, taken alone or in combination, prevent the Veteran from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should provide a rationale for this opinion, which clearly takes into consideration the Veteran's statements. 2. The RO/AMC should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 3. After completion of all requested and necessary development, the RO/AMC should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The Veteran 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs