Citation Nr: 1317945 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 11-18 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a compensable initial rating for residuals of a right fourth finger injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran performed active duty from July 1958 to March 1962. This case arises to the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that in pertinent part granted service connection and assigned a noncompensable rating for residuals of a right fourth finger injury. The Veteran appealed to the Board for a compensable rating for the right fourth finger. In his substantive appeal, the Veteran requested a hearing before a Veteran's law judge; however, in August 2011, he withdrew that request. He testified before an RO hearing officer in December 2012. In March 2013, the AMC granted separate service connection for right hand neuropathy and assigned a 10 percent schedular rating effective October 2010. The RO also granted separate service connection for right finger scars and assigned a zero percent rating. The Veteran has not appealed that decision, although the appeal period does not terminate until March 2014. The Board lacks jurisdiction to address any issue for which an notice of disagreement (NOD) has not been filed. Garlejo v. Brown, 10 Vet. App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). The evidence of record includes the paper claims file and an electronic file known as Virtual VA. FINDING OF FACT For the entire appeal period, the residuals of a right 4th finger injury have been manifested by right hand weakness, stiffness, decrease in dexterity, pain on motion of the right ring finger, and 5 degrees of hyperextension of the right fourth finder DIP joint. CONCLUSION OF LAW The criteria for an initial 10 percent schedular rating for residuals of a right 4th finger injury are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230; § 4.73, Diagnostic Code 5309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher initial 4th finger rating, the NOD with the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these directives, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a January 2010 notice letter and in a statement of the case (hereinafter: SOC) issued in July 2011. The SOC provided the claimant with the relevant rating criteria for orthopedic limitation of motion of the fingers, amputation of digits, and ankylosis of digits. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all VA and private clinical records reasonably identified. The claimant was afforded VA medical examinations. These VA examination reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. This case arises from a disagreement with an initial disability rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Residuals of Right Fourth Finger Injury The RO has initially rated a right fourth finger amputation disability zero percent disabling under Diagnostic Code 5230. The RO rating decision acknowledges that during active service the finger was amputated but successfully reattached. Under Diagnostic Code 5230, limitation of motion of the ring or little finger of either hand warrants a noncompensable schedular evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2012). While this code offers only a noncompensable rating and would therefore appear to end the matter, the VA compensation examination reports revealed that the disability is manifested by more than simply an orthopedic limitation of motion of the right fourth finger. The February 2010 and January 2013 VA compensation examination reports combine to reflect weakness in the entire right hand, stiffness, decrease in dexterity, pain on motion of the right ring finger, limitation of motion, 5 degrees of hyperextension of the distal interphalangeal (DIP) joint of the right fourth finger, sensory deficits, atrophy of the finger, and scars of the 2nd, 3rd and fourth fingers. In December 2012, the Veteran testified that his right hand cramps, burns, and pain travels up the arm to the shoulder. He testified that the right hand aches and can grip something for no longer than 10 minutes. The right fourth finger was also cold-sensitive. In the Introduction to this decision, we noted that the RO recently granted a separate service connection and a 10 percent rating for right fourth finger neuropathy and also granted separate service connection and a noncompensable rating for laceration scars of the fingers. The Veteran has not appealed that decision. Thus, the Board will not address the initial neuropathy and scars ratings, which appear to include burning-type pain, numbness, and tingling, and several well healed scars of the second, third, and fourth fingers on the right. Moreover, the January 2013 VA examiners have discovered that since the February 2010 examination, the Veteran has developed bilateral carpal tunnel syndrome, but carpal tunnel syndrome has been dissociated from the service-connected right fourth finger injury. Several right hand and finger manifestations predate carpal tunnel syndrome and are attributed to the service-connected disability. These are right hand weakness, stiffness, decrease in dexterity, pain on motion of the right ring finger, and 5 degrees of hyperextension of the DIP joint. Furthermore, these disabilities are separate and distinct from burning neuropathic pain, numbness, tingling, and scars, that are rated elsewhere and not currently on appeal. The Veteran's complaint of weakness in the right fingers and hand suggests a muscle disability. Under Diagnostic Code 5309, Muscle Group IX is rated. This muscle group includes the intrinsic muscles of the hand. A rating note controls the rating to be assigned under Diagnostic Code 5309. The rating note states: "The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Rate on limitation of motion, minimum 10 percent." Regardless that Diagnostic Code 5230 does not offer a compensable rating for the right fourth finger, Diagnostic Code 5309 requires that at least a 10 percent rating be assigned for limitation of motion. This 10 percent rating will include consideration of additional functional impairment due to weakness, fatigue, decrease in dexterity, hyperextension of the DIP joint, and painful motion under the tenets of DeLuca, 8 Vet. App. at 206. The medical opinions offered in this case are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Likewise, the lay evidence is competent evidence with regard to descriptions of symptoms of disability. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if lay person is competent to identify the medical condition). After considering all the evidence of record, including the testimony, the Board finds that for the entire appeal period the evidence favors a 10 percent schedular rating under Diagnostic Code 5309. This decision does not affect any rating that may be assigned for neuropathy and/or scars. The evidence does not demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore not necessary. Hart, 21 Vet. App. at 510. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. In Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (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. Id, at 1368. In this case, the established schedular criteria have not been shown, or alleged, to be inadequate to describe the severity and symptoms of the claimant's disability; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). Additionally, if a claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, neither the record nor the Veteran has reasonably raised the question of unemployability. ORDER For the entire appeal period, an initial 10 percent schedular rating for residuals of a right fourth finger injury is granted, subject to the laws and regulations governing payment of monetary benefits. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs