Citation Nr: 1318609 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-41 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a skin disorder to include as secondary to herbicide exposure. 2. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a compensable disability rating for a right fifth finger disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In his September 2010 statement (VA Form 646), the Veteran requested a personal hearing before a Veterans Law Judge. In May 2012, a hearing was scheduled, but the Veteran failed to report. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2011). The issues of entitlement to an increased rating for PTSD and entitlement to service connection for a skin disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and probative evidence shows that the Veteran's residuals of injury to the right fifth finger are manifested by pain, limitation of motion, and decreased grip strength. CONCLUSION OF LAW The criteria for an evaluation of 10 percent, and no greater, for residuals of injury to the right fifth finger have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 5230-5309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and 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. A VCAA letter dated in July 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided a VA examination in October 2008. The October 2008 examiner considered the Veteran's claims of experiencing symptoms of right hand pain, as well as the service treatment records, post-service treatment records, and conducting a physical examination. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for a compensable disability rating for a right fifth finger disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Rules and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012). Here, the Veteran's disability is the result of an injury during active service. The Veteran's right fifth finger disability is rated under Diagnostic Code 5230. Diagnostic Code 5230 assigns a zero percent rating for any limitation of motion of the ring or little finger. The rating schedule provides that arthritis due to trauma, substantiated by X-ray findings, should be rated under the criteria for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5010 (Arthritis Due to Trauma), 5003 (Degenerative Arthritis). Degenerative arthritis 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 however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Codes 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A higher rating of 20 percent is available when there is arthritis in more than one major joint or 2 or more groups of minor joints with occasional incapacitating exacerbations. Diagnostic Code 5003, 38 C.F.R. § 4.71a. Generally, muscle group damage is categorized as slight, moderate, moderately severe and/or severe and evaluated accordingly under 38 C.F.R. § 4.56 (2012). With respect to Diagnostic Code 5309, however, different criteria apply. As indicated in that code, Muscle Group IX consists of the intrinsic muscles of hand, the thenar eminence, short flexor, opponens, abductor and adductor of the thumb, the hypothenar eminence, and the short flexor, opponens and abductor of the little finger. The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Thus, injury to Muscle Group IX should be rated on limitation of motion, with a minimum 10 percent assigned. 38 C.F.R. § 4.73, Diagnostic Code 5309, Note. Staged ratings are currently in effect for the Veteran's residuals of right hand injury: the disability has been rated as noncompensable. Even so, VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). Factual Background and Analysis The Veteran was afforded a VA examination in October 2008 where he reported he had right medial hand pain and right fifth finger pain, which is aggravated by various motions. He has been taking ibuprofen with mild relief. The Veteran had definite mild weakness, fatigue and lack of endurance, but no significant incoordination in regard to his right hand. There have been no flare-ups. He has not had any operations in regard to his hand. The Veteran reported having difficulty handling small objects. The examiner noted that dexterity of the right hand, principally the fifth finger, is diminished. In regard to the right hand, the metatarsophalangeal joint measured 60 degrees of flexion. The proximal interphalangeal of the right fifth finger flexes to 100 degrees. The distal interphalangeal joint of the fifth finger flexed to 45 degrees. There was mild pain on the above flexion. Extension was to zero degrees. There was weakened grip of the right fifth finger. Repetitive motion test of the right hand including the fingers did not result in any increased pain, and range of motion remained unchanged. X-ray testing revealed degenerative changes consistent with an old injury. The diagnosis was traumatic arthritis of the right fifth finger secondary to service injury. As outlined above, a noncompensable disability evaluation represents the maximum schedular rating available for limitation of motion of the ring or little finger under Code 5230. Consequently, the Veteran is not entitled to an increased evaluation for any limitation of motion in the right little finger hand under this code. The Board has also considered the evidence that the Veteran has arthritis in the right little finger; however, under Diagnostic Code 5003, a 10 percent disability evaluation will be assigned for arthritis where limitation of motion is non-compensable only for 'each major joint or group of minor joints.' For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45(f). However, even interpreting the evidence in a manner most favorable to the Veteran, he has been diagnosed with arthritis in only one minor joint, the interphalangeal joint of his right little finger. While there is evidence that the Veteran may have arthritis in other joints of his right hand, specifically, the thumb, the Veteran is not service connected for a disability affecting that digit. Thus, the Veteran does not have 'multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities' and his arthritis cannot be said to affect a group of minor joints, as, at best, only one service connected minor joint is affected. Based on the evidence currently of record, the Board finds that the Veteran does not meet the criteria for a compensable evaluation under Diagnostic Code 5003. Diagnostic Codes 5216 through 5223 rate ankylosis for multiple digits of the hand. However, there is no evidence of ankylosis of the fingers on the right hand and therefore Diagnostic Codes 5216 though 5223 do not apply. Diagnostic Code 5227 rates ankylosis of the little finger as noncompensable regardless of whether the digit is attached to the dominant or nondominant hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2012). A note to Diagnostic Code 5227 states the rater 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 the overall function of the hand. Furthermore, amputation of the ring finger is evaluated under Diagnostic Code 5155. There is no indication any of the Veteran's fingers are amputated or approximate amputation. Since there is no objective evidence of neuropathy, rating any of the fingers of the right hand under Diagnostic Codes 8514, 8515, and 8516 are not for application. They would rate complete or incomplete paralysis of the hand based on whether there is injury to the radial, median, or ulnar nerve, respectively. 38 C.F.R. § 4.124a, Diagnostic Codes 8514, 8515, and 8516 (2012). The Board notes that the Veteran has had complaints of pain and weakened grip strength in his hand due to his right fifth finger disability during the course of the appeal. In this regard, when an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogous will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. See 38 C.F.R. § 4.20 (2012). The Board finds the evidence supports a 10 percent disability rating for his right fifth finger disability. In essence, based on the presence of decreased grip strength noted in particular during the October 2008 VA examination, the Board finds that the disability picture in this case is akin to that of moderate impairment to muscle group VIII. Therefore, the Board finds that an analogous rating of 10 percent is warranted under 38 C.F.R. § 4.73, Diagnostic Code 5308. See 38 C.F.R. § 4.56(d)(1) and (2), supra. The Board further finds, however, that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 10 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although it was noted in some of the examination reports that the Veteran exhibited pain on motion, as well as decreased grip strength, these findings have already been taken into consideration in the assignment of the current 10 percent rating. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b) (1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected right fifth finger disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his right fifth finger to include pain and loss of grip strength. There is no evidence in the medical records of an exceptional or unusual clinical picture beyond that contemplated by the analogous rating awarded herein. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. The Board concludes that the preponderance of the evidence is against assigning a rating in excess of 10 percent for the Veteran's service-connected right fifth finger. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. ORDER Entitlement to a disability rating of 10 percent, but no higher, for a right fifth finger disability is granted. REMAND In evaluating the Veteran's request for increased disability ratings, the Board considers the medical evidence of record. The Veteran contends that the service-connected PTSD is more severe than currently rated, and warrants an increased disability rating. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran was last afforded a VA examination to evaluate the severity of his service-connected PTSD in October 2008. Since then, in a March 2010 VA progress note, the Veteran described a worsening of PTSD symptoms after the death of a friend. Accordingly, the Board finds that the evidence of record is inadequate to properly evaluate the service-connected PTSD; and that a new VA examination, with more contemporaneous medical findings, is needed. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he has had a skin disorder since active service, to include service in Vietnam. During service, the Veteran was diagnosed with sensitivity to extreme sunlight or second degree burns. Upon separation in November 1968, he denied skin problems. In a March 2003 VA progress note, the Veteran complained of pruritis for six months. He also reported that he has been on "Kenalog" injections since 1975 for allergic rhinitis and since then he has been having skin problems. During a December 2012 VA Agent Orange registry follow-up, an examiner noted the Veteran's symptoms might be consistent with porphyria cutanea tarda (PCT), which is a presumptive disorder. Additional VA progress notes included diagnosis of actinic keratosis. During an April 2010 VA examination, the examiner found that the Veteran had only a follicular rash and numerous excoriations. There were no objective findings of a lesion consistent with PCT. The examiner stated she would have to speculate any connection between his current rash and the rash present in service as there is neither continuity nor documentation. Although the examiner noted there is no continuity, the Veteran has asserted continuity since service. Also, what documentation the examiner would need to render an opinion is also unclear as current treatment records are in the claims file, as are service treatment records. In the absence of such explanation, it remains unclear as to whether the examiner has invoked the phrase 'without resort to mere speculation' merely as a substitute for full consideration of all pertinent and available medical facts. For this reason, the April 2010 VA opinion is deficient. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran, please request any outstanding VA treatment records that pertain to PTSD or skin disorder by the Veteran; and associate them with the claims folder. 2. Accord the Veteran an appropriate VA examination, for evaluation of the service-connected PTSD. All appropriate tests should be conducted. The entire claims file, to include a complete copy of this remand must be made available to the examiner, and the examination report should note review of the file. All pertinent findings shown on evaluation should be noted in the examination report. In addition, the examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the Veteran's PTSD, and an explanation of the meaning of the score. The examiner should set forth a rationale for the conclusions reached. These specific findings are needed to rate the Veteran's disability in accordance with the rating schedule. It is important that the examiner furnish the requested data. 3. Schedule the Veteran for an appropriate VA skin examination. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file and conducting a thorough physical examination and interview of the Veteran, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to (a) whether it is at least as likely as not that the Veteran has PCT or any other skin disorder, (b) the most likely time of onset of any diagnosed skin disorder, and (c) whether it is at least as likely as not that any diagnosed skin disorder was caused or aggravated by his military service, to include exposure to herbicides (Agent Orange). In that regard, please note that exposure to herbicides (Agent Orange) in service has been conceded. It would be helpful if the examiner would use the following language, as may be appropriate: 'more likely than not' (meaning likelihood greater than 50%), 'at least as likely as not' (meaning likelihood of at least 50%), or 'less likely than not' or 'unlikely' (meaning that there is a less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claims on appeal, taking into consideration all applicable rating criteria. If any benefit sought is not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs