Citation Nr: 1320243	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  09-46 752	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts



THE ISSUES

1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to an initial evaluation in excess of 10 percent for headaches.

3. Entitlement to an initial compensable evaluation for left thumb tendonitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 2000 to February 2001, from January 2003 to January 2004, and from December 2005 to January 2007.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2007, October 2007, and December 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  In the August 2007 rating decision, the RO granted service connection for left thumb tendonitis associated with a left thumb MCP joint condition and assigned a noncompensable evaluation effective from January 23, 2007.  In the October 2007 rating decision, the RO granted service connection for headaches and assigned a 10 percent evaluation effective from January 23, 2007.  In the December 2007 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective from January 23, 2007.

The Board notes that the Veteran was scheduled for a Board hearing at the RO in August 2011; however, he failed to report for that proceeding.  He has not requested that the hearing be rescheduled, nor has he provided good cause.  Therefore, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record.  See 38 C.F.R. § 20.704(d).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issues of entitlement to higher initial ratings for PTSD and headaches are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  The Veteran is right-handed.
2.  The Veteran's left thumb tendonitis is manifested by objective evidence of pain on motion, but there was no reduction in range of motion or gap between the thumb pad and fingers with the thumb attempting to oppose the fingers.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 10 percent disability evaluation for left thumb tendonitis have been met. 38 U.S.C.A. §§ 1155; (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5024-5228 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for left thumb tendonitis.  In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for left thumb tendonitis.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims.  The Veteran has not identified any outstanding records that are available and relevant to the claims being decided herein.  Moreover, the record includes various written statements provided by the Veteran and his representative.

The Veteran was also provided VA examinations in March 2007 and December 2010 in connection with his claim.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully address the rating criteria that are relevant to rating the disability in this case. 

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 


Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 

In this case, the Veteran was granted service connection for left thumb tendonitis in the August 2007 rating decision currently on appeal, and the disability was assigned a noncompensable disability rating effective from January 23, 2007.  In October 2007, the Veteran filed his notice of disagreement with the assigned rating and contended that he had ongoing pain of the thumb consistent with a higher evaluation.

The Veteran's service-connected left thumb disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5024-5228.  Diagnostic Code 5024 indicates tenosynovitis will be rated on limitation of motion of affected parts, as degenerative arthritis, which in this case would be Diagnostic Code 5228 (limitation of motion of the thumb).

Under Diagnostic Code 5228, a noncompensable rating is assigned for thumb limitation of motion with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  A 10 percent rating requires a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers.  The maximum schedular 20 percent rating is warranted when there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  In this case, the evidence shows that the Veteran is right-handed.  In fact, the March 2007 and December 2010 VA examiners both indicated that the Veteran's right-hand was dominant, and the March 2007 VA examiner noted that the determination was actually based on the Veteran's own statements.  Thus, minor, as opposed to major, thumb disability ratings are applicable. 38 C.F.R. § 4.69.

During the March 2007 VA examination, the Veteran indicated that he had injured his left thumb in service and had problems with his left thumb since that injury.  He stated that using a hammer or holding a steering wheel caused thumb pain.  He also reported that there was a significant effect on his occupation as a firefighter and carpenter due to decreased manual dexterity, weakness, fatigue, and pain.  He stated that he was assigned to different job duties.  On physical examination, there was no gap between the thump pad and tips of fingers on attempted opposition of the thumb to fingers.  There was decreased strength for pushing, pulling, and twisting, but there was no decreased dexterity for twisting, probing, writing, touching, and expression.  The Veteran's range of motion of the left thumb metacarpal-phalangeal joint revealed flexion to 60 degrees (active and passive), and his range of motion of the left thumb carpometacarpal joint was to 40 degrees (active and passive).  He was diagnosed with left thumb tendonitis with left thumb MCP joint condition.

During the December 2010 VA examination, the Veteran reported continued pain since the initial injury and progressively worsening symptoms since the March 2007 VA examination.  On physical examination for active range of motion, there was no gap between the thumb pad and the fingers, but there was objective evidence of pain following initial and repetitive range of motion testing.  The examiner also noted that there was decreased strength for pushing, pulling, and twisting and decreased dexterity for twisting, probing, writing, touching, and expression.  The Veteran reported significant effects on his occupation as a fire fighter due to decreased manual dexterity, problems with lifting and carrying, and pain.

Based on the evidence of record, the Board finds that an initial compensable rating for left thumb tendonitis is not warranted under Diagnostic Code 5228.  As outlined above, the governing criteria provide for a compensable rating for a thumb disability where there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers with the thumb attempting to oppose the fingers.  In this case, the Veteran has had no difficulty in opposing the thumb to the fingers, and there has been no gap between the thumb pad and fingers when doing so.  A compensable rating is also not warranted under any other potentially applicable diagnostic code because the above evidence reflects that the left thumb tendonitis does not cause ankylosis, is not analogous to an amputation, does not result in limitation of motion of other digits, and does not otherwise interfere with the overall function of the hand.  See 38 C.F.R. § 4.71a, Diagnostic Code 5224 and Note following diagnostic codes applicable to ankylosis of individual digits.

Nevertheless, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, and concludes that the Veteran is entitled to an initial 10 percent evaluation for left thumb tendonitis.  The December 2010 VA examination findings of pain throughout range of motion is precisely the symptomatology that 38 C.F.R. §§ 4.40 and 4.59 indicate would warrant a 10 percent rating even in the absence of limitation of motion, deformity of structures, or other pathologies.  In this regard, the December 2010 VA examiner indicated that the Veteran had objective evidence of pain, decreased strength, and decreased dexterity.  Accordingly, taking into account the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings of DeLuca, supra, the Board finds that the present severity of the disability at issue is more appropriately reflected by a 10 percent evaluation.  The benefit of the doubt is resolved in the Veteran's favor.  See 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5024-5228.

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's service-connected left thumb tendonitis is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which primarily consists of pain and decreased dexterity and strength.  As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left thumb disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).



ORDER

Subject to the regulations governing the award of monetary benefits, an initial disability rating of 10 percent, but no greater, for left thumb tendonitis is granted.


REMAND

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes obtaining treatment records identified by the Veteran as relevant to the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

In this case, the Veteran was afforded a VA examination in July 2009 in connection with his claim for a higher initial evaluation for PTSD.  During the VA examination, the Veteran identified that he was presently receiving weekly counseling at a private counseling center.  He stated that he attended both individual and couples counseling.  However, the Board observes that the there are no private treatment records associated with the claims file that document any complaints or treatment for PTSD or any psychological disorder.  Therefore, the RO/AMC should attempt to obtain such records.

While this matter is being remanded in order to obtain private counseling records, the Board takes this moment to advise the Veteran of his need to participate in the claims adjudication process.  The Veteran was scheduled for a Board hearing in August 2011 and a VA examination for PTSD evaluation in November 2011; however, he did not report for the hearing or examination.  The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. See 38 C.F.R. § 3.159(c)(1).

With regard to the Veteran's headaches, the Board notes that the Veteran is currently evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8045.  During the pendency of the appeal, VA amended the criteria for rating neurological and convulsive disorders under Diagnostic Code 8045. 73 Fed. Reg. 54,693, 54,708 (September 23, 2008).  However, the Veteran has not been notified of this amendment.  Therefore, the Board finds it necessary to remand the Veteran's claim so that the RO/AMC may address in the first instance the applicability of these revisions to the claim and notify the Veteran of the amended rating criteria.

In addition, the Veteran's headache disability was last evaluated by VA in August 2007.  The Board notes that the Veteran was scheduled for a VA neurological examination in November 2011, but he did not report for that appointment.  As noted above, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  However, in light of the fact that the case is already being remanded, the Board finds that he should be given the opportunity for another VA examination.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD and headaches.  After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file.

A specific request should be made for authorization to obtain records from the private counseling center where he received weekly counseling.  

2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected headaches.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected headaches.

The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria for traumatic brain injuries.  The examiner should also indicate the frequency and duration of any prostrating attacks and opine as to whether the Veteran's service-connected headaches have resulted in severe economic inadaptability.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable importance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2012), the Veteran's claims file must be made available to the examiner for review.

3.  After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.  Further development may include an additional VA examination in connection with the claim for a higher initial evaluation for PTSD.

4.  When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  This SSOC should include the version of Diagnostic Code 8045 that became effective on October 23, 2008.

The Veteran 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).



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs