Citation Nr: 1320479	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  07-20 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right carpal tunnel syndrome (claimed as right wrist condition).

2.  Entitlement to service connection for right carpal tunnel syndrome (claimed as right wrist condition).

3.  Entitlement to service connection for a right hip disorder.

4.  Entitlement to service connection for arthritis of the hands.

5.  Entitlement to a compensable evaluation for muscle strain of the right fourth (ring) finger.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Counsel


INTRODUCTION

The Veteran served on active duty from October 1982 to September 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

With regard to the Veteran's claim of entitlement to service connection for right carpal tunnel syndrome, a review of the record reveals that this issue was previously denied by the RO in January 2004 and November 2007.  The Veteran did not perfect an appeal as to the most recent denial.  Hence, new and material evidence is necessary to reopen this claim and consider it on the merits.  See 38 C.F.R. § 3.156 (2012).  Further, regardless of the RO's actions (i.e., whether it reopened the Veteran's claim), it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been submitted.  Barnett v. Brown, 8 Vet. App. 1 (1995).  The Board has therefore characterized the issues on appeal as set forth on the cover page.  

The Board previously remanded the issues on appeal, along with entitlement to service connection for cervical strain and fracture of the right long finger, in September 2011 to the Appeals Management Center (AMC) in Washington, DC.  In December 2012, the AMC granted service connection for cervical strain, residuals of a right long finger chip fracture, and residuals of a dislocation of the right little finger.  As this constitutes a grant of the full benefits sought with regard to these claims, they are no longer before the Board.  Seri v. Nicholson, 21 Vet. App. 441, 447 (2007).  To the extent that the January 2013 and February 2013 supplemental statements of the case appear to indicate that the initial evaluations assigned to these disabilities are on appeal, the Board observes that the record contains no indication that the Veteran has filed a notice of disagreement with the December 2012 rating decision.  See 38 C.F.R. §§ 20.200, 20.201 (2012).  Hence, the Board does not have jurisdiction of these issues.  See 38 U.S.C.A. § 7105 (West 2002).  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 

The Board's disposition of the matters of whether to reopen a claim of entitlement to service connection for right carpal tunnel syndrome, entitlement to service connection for right carpal tunnel syndrome, entitlement to service connection for arthritis of the hands, and entitlement to a compensable evaluation for muscle strain of the right fourth finger is set forth below.  The remaining issue - entitlement to service connection for a right hip disorder - is addressed in the REMAND portion of the decision and is REMANDED to the Department of Veterans Affairs Regional Office via the Appeals Management Center, in Washington, DC.

As a final preliminary matter, the Board observes that the issues of entitlement to service connection for hearing loss and tinnitus, as well as entitlement to increased evaluations for degenerative disc disease of the lumbosacral spine, degenerative joint disease of the left hip, and residuals of fractured left ankle have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  A November 2007 rating decision denied the Veteran's claim of entitlement to service connection for right carpal tunnel syndrome.  It was held that the Veteran had failed to submit evidence showing that he had a current disability.  Appellant was notified of the decision and submitted a notice of disagreement, but did not perfect an appeal following receipt of a statement of the case.

2.  Some of the evidence received since the November 2007 rating decision bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for right carpal tunnel syndrome.

3.  Probative lay and medical evidence indicates that it is at least as likely as not that the Veteran's currently diagnosed right carpal tunnel syndrome is causally related to his military service.  

4.  There is no competent evidence indicating the presence of arthritis of the hands at any point pertinent to this appeal.

5.  Although the Veteran's muscle strain of the right fourth finger is productive of subjective complaints of painful motion, the regulations do not provide for a compensable evaluation for limited motion of the fourth (ring) finger.  


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim for service connection for right carpal tunnel syndrome.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).

2.  With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for right carpal tunnel syndrome are met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

3.  The criteria for service connection for arthritis of the hands are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).

4.  The criteria for a compensable evaluation for the muscle strain of the right fourth finger are not met.  38 U.S.C.A. § 1155 (West 2002); C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5227 and 5230 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

Here, with regard to the issues of whether to reopen a claim of entitlement to service connection for right carpal tunnel syndrome and whether to grant the claim on its merits, the Board observes that it is granting the full benefit sought.  Thus, all notification and development action needed to fairly adjudicate these issues has been accomplished.  

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this case.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in April 2009 and February 2010 correspondence of the information and evidence needed to substantiate and complete a claim for service connection and for increased evaluation, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  These letters also notified the Veteran of how VA determines the disability rating and effective date.  These claims were most recently readjudicated in a February 2013 supplemental statement of the case. 

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims herein decided, including obtaining service and post-service treatment records pertaining to his claimed conditions.  Pursuant to the Board's September 2011 remand, the Veteran's accredited representative was provided a copy of the additional development completed post-remand as well as an opportunity to present additional evidence and/or argument.  The Veteran was afforded an examination in April 2009 for the specific purpose of evaluating the nature and severity of his service-connected right ring finger disability and a medical opinion was obtained in December 2012 regarding his service connection claims that was based upon a review of the claims file, to include relevant medical and lay evidence.  Both reports contain sufficient evidence by which to make a determination regarding the issues of service connection and increased evaluation.  In sum, the appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  See Washington v. Nicholson, 21 Vet. App. 191 (2007). 

As a final note, the Board observes that it has reviewed all the evidence in the Veteran's claims file and the electronic, paperless Virtual VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims herein decided and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


Claim to Reopen

Historically, the Veteran filed a claim of entitlement to service connection for a right wrist condition in March 2003 which was denied by the RO in January 2004.  In that decision, the RO noted that service treatment records showed an assessment of probable acute carpal tunnel syndrome in August 1989 and an assessment of mild tendonitis in March 2003.  It also noted a May 2003 VA examination report indicating a diagnosis of right carpal tunnel syndrome, but found that given the absence of any functional impairment the medical evidence failed to establish a current disability.  

Thereafter, in September 2005, the Veteran submitted a new claim for his right hand/wrist.  The RO interpreted the claim as a request to reopen the previously denied claim and, in a November 2007 rating decision, reopened the claim but denied it on the merits.  In denying the Veteran's claim, the RO noted that medical evidence had been submitted, i.e., an electromyography (EMG) study, which found no evidence of carpal tunnel syndrome.  While relevant to the current appeal, such evidence still did not establish a current disability.  As such, his underlying claim for service connection was denied.  

The Veteran was notified of the RO's rating decision in November 2007 and, in December 2007, submitted a notice of disagreement.  A statement of the case was thereafter mailed to the Veteran in March 2008.  No substantive appeal was received.  Hence, the RO's November 2007 denial of this claim is final as to the evidence then of record, and is not subject to revision on the same factual basis.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  In February 2009, the Veteran filed the reopen his previously denied claim of service connection for right carpal tunnel syndrome.  Thereafter, in a June 2010 rating decision, the RO denied the Veteran's request to reopen his claim.  Thereafter, in a June 2011 statement of the case, the RO appears to have reopened the claim but a denial of the merits was continued.  

The provisions of 38 C.F.R. § 3.156(a) define 'new' evidence as evidence not previously submitted to agency decisionmakers and 'material' evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  In the instant appeal, the last final denial of the claim is the RO's November 2007 rating decision.  Additionally, for purposes of the 'new and material' analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

Here, additional evidence has been associated with the claims file since the November 2007 rating decision that pertains to the Veteran's claimed right carpal tunnel syndrome.  Such evidence includes VA treatment reports showing an active problem of carpal tunnel syndrome, right greater than left.  There is also non-VA treatment records and written statements by the Veteran showing continued complaints of right wrist pain with numbness.  Finally, there is a December 2012 VA opinion in which a physician, having reviewed the Veteran's claims file, concludes that there is clinical evidence to support a diagnosis of right carpal tunnel syndrome and that it is at least as likely as not that such disorder was incurred during the Veteran's active military service.  

As noted above, at the time of the earlier rating decision, the record lacked sufficient medical evidence indicating a current disability of right carpal syndrome or an etiological link to some in-service disease, injury, or event.  The additionally received evidence, particularly the December 2012 VA opinion, suggests that the Veteran's right carpal tunnel syndrome is clinically significant despite no EMG evidence of such disorder and, further, that it is related to his in-service complaints and diagnosis of probable acute carpal tunnel syndrome.  

The foregoing evidence is 'new' in that it was not before agency decisionmakers at the time of the November 2007 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record.  Moreover, this evidence is 'material' in that it indicates the Veteran's currently diagnosed right carpal tunnel syndrome may be related to his military service.  As such evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection, the Board concludes that the criteria for reopening the claim for service connection for right carpal tunnel syndrome are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  See also Shade v. Shinseki, 24 Vet. App. 110, 119-21 (2010) (holding that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim").  

With the reopening, the question is whether the matter can be considered on the merits.  Here, the RO has considered the issue on the merits, and in view of the outcome below, there is no prejudice to the Veteran in the Board moving on to a merits consideration.

Service Connection Claims

Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d).  

Service connection for certain diseases, such as degenerative arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).  Service connection may also be warranted for those diseases found at 38 C.F.R. § 3.309(a) if there is a showing of chronic disease during service with subsequent manifestations of that chronic disease after service that cannot be clearly attributed to intercurrent causes or where the condition is noted in service and there is continuity of symptomatology sufficient to establish chronicity since service.  See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Right Carpal Tunnel Syndrome

Turning to the merits of the Veteran's reopened claim, he contends that he is entitled to service-connected compensation benefits for right carpal tunnel syndrome on the basis that such disability arose as a result of his exhaustive typing duties as a radioman and information technology specialist.  In various statements made during this appeal, he noted that he began experiencing an aching pain in his right wrist during service with occasional numbness and tingling of the hand.  

Service treatment records in this case reflect that the Veteran was evaluated for complaints of right wrist pain in August 1989.  He noted that he experienced pain after attempting to loosen a frozen bolt on a radio antenna and had difficulty gripping anything for twenty to thirty seconds.  A prior medical history of two right hand fractures was noted.  Examination revealed weak grip and positive Tinel's sign.  The assessment was probable acute carpal tunnel syndrome.  On retirement physical examination dated in February 2003, the Veteran reported a history of painful shoulder, elbow, or wrist, as well as numbness or tingling.  In March 2003, he sought evaluation for right hand pain with no known trauma; the assessment was probable mild tendonitis.  

Post service, at a May 2003 VA examination, the Veteran reported weekly episodes of right wrist pain aggravated by typing.  Tinel's sign was negative, and the examiner noted full range of motion in the wrist.  The assessment, nevertheless, was right carpal tunnel syndrome.  In October 2007, the Veteran underwent an EMG study to evaluate longstanding complaints of right wrist pain; the results revealed a 'limited normal study' with no electrophysiological evidence of right carpal tunnel syndrome.  The Veteran continued to complain of right wrist pain, swelling, and numbness.  More recent VA treatment records show that carpal tunnel syndrome is listed as an active problem and diagnosis.  A November 2011 private orthopedic treatment report notes a history suggestive of carpal tunnel syndrome (despite unremarkable x-rays and EMGs).  

As noted above, the RO has continued to deny the Veteran's claim on the basis that there is no evidence of a currently diagnosed disability.  In this regard, objective clinical evidence, i.e., the October 2007 EMG study, failed to show right carpal tunnel syndrome.  In 2012, however, the VA submitted the Veteran's claims file to a physician for review and response to the question of whether the evidence demonstrates right carpal tunnel syndrome and, if so, whether such condition is related to the Veteran's in-service complaints.  The resultant report, dated in December 2012, indicates that despite no EMG evidence of right carpal tunnel syndrome, the Veteran was diagnosed with right carpal tunnel syndrome on clinical examination and that his repeated complaints since service continue to show symptoms consistent with that diagnosis.  As such, it was the physician's opinion that the Veteran does, in fact, have a current diagnosis of right carpal tunnel syndrome and that it is at least as likely as not that this disorder was incurred during service.  

The Board notes that it is prohibited from making conclusions based on its own medical judgment.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  In this case, a physician has reviewed the record in its entirety and concluded that there is sufficient clinical evidence to support a current diagnosis of right carpal tunnel syndrome.  Further, it is this physician's opinion that the symptoms experienced by the Veteran during service are the same as those he is currently experiencing and that, as such, it is reasonable to conclude that his right carpal tunnel syndrome had its onset during active military service.  Absent some indication that this opinion is based on a false medical history or false medical principles, the Board will afford it significant probative weight on the question of a medical nexus.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).  

Thus, with consideration of the fact that this is the only medical opinion that adequately addresses whether the Veteran has right carpal tunnel syndrome that is related to service, and it supports such a relationship, the Board finds the weight of the evidence warrants entitlement to service connection for this disability.

Arthritis of the Hands

The Veteran contends that he is entitled to service-connected compensation benefits for arthritis of the hands.  In his initial February 2009 application, he indicated that he sought treatment for such condition from private practitioner, Dr. McAleese.  Subsequently, in December 2011, he asserted that a private orthopedic physician, Dr. Eglevsky, noted arthritis build-up within the outer areas of his right hand on x-ray examination.  

Essential to any claim for service connection is the requirement of a finding of a current disability at some point pertinent to the appeal.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As discussed below, the competent evidence in this case fails to establish that the Veteran has been diagnosed with arthritis in either hand at any point during this appeal.  As such, service connection for this condition must be denied.  See id.  

Initially, the Board notes that review of service treatment records from the Veteran's active duty service reveals multiple injuries to the left and right hands.  X-rays, however, were negative for any degenerative findings.  Post-service medical evidence includes a May 2004 MRI report which notes a healed fracture of the right fifth metacarpal without further abnormality.  An April 2009 x-ray of the Veteran's right hand was similarly normal, and a July 2009 x-ray report notes some diffuse joint space narrowing with old boxer's type fracture of the fifth metacarpal.  Finally, a November 2011 private treatment report by Dr. Eglevsky indicates that despite complaints of right hand pain, x-rays were 'unremarkable.'  

In December 2012, a VA physician had an opportunity to review the Veteran's entire claims file, to include the aforementioned medical records, and opine as to the nature and etiology of any claimed arthritis of the hands.  The resultant opinion reflects that the physician acknowledged that the development of osteoarthritis in the Veteran's hands would be consistent with the natural progression of joint disease, accelerated by accumulated minor trauma in service.  Pertinent to the current appeal, however, the physician also noted that the medical evidence of record is silent for any radiographic evidence of osteoarthritis of the hands.  

The Board acknowledges that the Veteran is competent to report his own symptoms of hand pain, discomfort, decreased strength and grip, etc., or other matters within his personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  However, matters of medical diagnosis for disability not capable of lay observation such as arthritis are matters within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  Thus, his statements alone are not sufficient to establish the existence of a current disability.  

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131.  In the absence of proof of present disability there can be no valid claim.  Brammer, 3 Vet. App. at 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes).  In this case, as there is no competent evidence of a current disability of arthritis of the hands, there is no basis upon which to establish service connection.  Accordingly, the claim for service connection must be denied.  See Degmetich, 104 F.3d at 1328.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Increased Evaluation Claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  If there is a question as to which evaluation to apply, 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 (2012).

When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.

The Veteran was previously granted service connection for residuals of right ring finger fracture and assigned a noncompensable (0 percent) evaluation under Diagnostic Code 5227, which pertains to ankylosis of the ring or little finger.  In February 2009, the Veteran filed a claim for increased evaluation, citing continued pain in his right hand, to include the fourth (ring) finger, as well as decreased range of motion, strength, and dexterity.  In a June 2010 rating decision, the RO denied the Veteran's claim for increased evaluation.  It also noted in that decision that the competent evidence of record did not support a prior history of fracture to the finger; thus, it recharacterized the Veteran's disability as muscle strain of the right fourth finger and reassigned a noncompensable evaluation under Diagnostic Code 5230, which pertains to limitation of motion of the ring or little finger.  

Disabilities of the fourth (or ring) finger are evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5227 and 5230.  Regarding the former diagnostic code, a maximum noncompensable evaluation is warranted for major or minor (i.e., dominant or non-dominant) favorable or unfavorable ankylosis of the ring or little finger.  38 C.F.R. § 4.71a, Diagnostic Code 5227.  Similarly, a maximum noncompensable evaluation is warranted for any limitation of motion of the major or minor ring or little finger.  Id. at Diagnostic Code 5230.  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court has clarified, however, that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).

Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  

In sum, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  Further, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Section 4.59 provides that 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.  38 C.F.R. § 4.59.

On April 2009 VA examination, the Veteran complained of chronic pain on the dorsal surface of his hand.  He also reported a decrease in his overall right hand strength and dexterity.  Flare ups were noted to occur approximately every two to three weeks and to be of moderate severity.  He indicated that during a flare up he would avoid using his right hand to drive and was unable to tie his shoes utilizing his fourth (ring) finger.  On examination, there was no objective evidence of pain on active range of motion; range of motion remained normal with repeated movement.  The examiner noted no ankylosis, and strength for pushing, pulling, and twisting was not affected.  There was also no evidence of decreased dexterity for twisting, probing, writing, touching, and expression.  X-rays of the fourth (ring) finger were normal.  The examiner's assessment was muscle strain of the right ring finger.  

Subsequently-dated medical evidence is silence for additional findings pertaining specifically to the Veteran's right ring finger.  The record does, however, contain a number of written statements from the Veteran in which he describes continued pain between his third and fourth fingers, limited motion, and pain with use, especially typing on a keyboard.  

Based on the evidence of record, the Board finds that compensable disability evaluation for muscle strain of the fourth ring finger is not warranted.  As outlined above, a noncompensable evaluation represents the maximum schedular rating available for limitation of motion of the ring (or fourth) finger under Diagnostic Codes 5227 and 5230.  Consequently, the Veteran is not entitled to an increased evaluation for any limitation of motion in the right ring finger under either of these codes.

A compensable rating for ring finger disabilities may be assigned for amputation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5155 (2012).  A compensable rating may also be warranted if there is favorable or unfavorable ankylosis of two or more digits of one hand.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5219 (2012).  Ankylosis may be rated as amputation, but in order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis.  See Note (3)(i) preceding 38 C.F.R. § 4.71a, Diagnostic Code 5216.  In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints either in extension or full flexion or with rotation or angulation of a bone.  Id.  Note (3)(ii) explains that, if both the metacarpophalangeal and proximal interphalangeal joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position.  Note (3)(iii) indicates that if only the metacarpophalangeal or proximal interphalangeal joint were ankylosed and there was a gap of more than 2 inches (5.1 cm.) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis.

The governing criteria provide for a compensable rating for the type of disability for which the Veteran has been service-connected only where there is amputation of the finger or equivalent impairment (e.g., extremely unfavorable ankylosis as in the Note cited above).  In this case, the Veteran's right ring finger disability is not characterized by either ankylosis or amputation at any point during this appeal.  Significantly, the Veteran has never been noted to have ankylosis in this finger and has not alleged that there is ankylosis.  As extremely unfavorable ankylosis is not shown, a compensable rating is not warranted.  

The Board has considered whether compensable disability ratings are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See also DeLuca v. Brown, 8 Vet. App. 202 (1995).  In this regard, the Veteran has complained of pain with use throughout this appeal.  Nevertheless, despite the Veteran's complaints of pain, the April 2009 VA examination report stated the range of motion was normal and pain-free.  As such, the noncompensable rating under Diagnostic Codes 5227 or 5230 remain warranted.  Although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell, 25 Vet. App. at 33, 43.  Rather, pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss.  Id.  In the instant case, the VA examiner specifically noted no additional impairment, including additional limitation of motion, on account of any subjective factors.

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as 'marked interference with employment' and 'frequent periods of hospitalization.'  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating.  Id.

The symptoms associated with the Veteran's ring finger disability, as described above, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disabilities.  His complaints of pain associated with his finger disability are contemplated by the schedular rating criteria of Codes 5227 and 5230.  Therefore, the Board need not proceed to consider the second factor, whether there are related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

Finally, in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered 'part and parcel' of the claim for benefits for the underlying disability.  In the instant case, the Veteran has not contended, nor does the evidence demonstrate, that he is not unemployable as a result of his service-connected right ring finger disability.  Therefore, the Board finds that a claim for TDIU is not raised by the Veteran or reasonably raised by the record and, as such, need not be further addressed.

In sum, as the preponderance of the evidence is against this claim for compensable evaluation, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

New and material evidence having been received, the claim of entitlement to service connection for right carpal tunnel syndrome is reopened.  

Entitlement to service connection for right carpal tunnel syndrome is granted.  

Entitlement to service connection for arthritis of the hands is denied.

Entitlement to a compensable evaluation for muscle strain of the right fourth (ring) finger is denied.


REMAND

The Veteran contends that he is entitled to service connection for a right hip disorder, currently diagnosed as mild osteoarthritis with subchondral sclerosis and cyst formation, as secondary to his service-connected disability.  In various statements submitted during this appeal, he indicates that a private chiropractor previously linked his hip pain to his service-connected lumbar spine disability and that his right hip disorder may also be due to overcompensation related to his service-connected left hip disorder.  

The Veteran's claims file was previously sent to a VA physician for a medical opinion regarding the etiology of any current right hip disorder.  Review of the December 2012 report reveals that the physician concluded that the Veteran's right hip condition is less likely related to military service on the basis that there was no evidence of a right hip injury in service or any indication of active duty complaints.  Pertinent to the current appeal, the physician did not address the Veteran's assertions regarding a secondary relationship between his right hip osteoarthritis and other service-connected disorders.  Given the specific contentions of the Veteran, a supplemental opinion regarding this issue is necessary.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). 

Prior to the examination, to ensure that all due process requirements are met and that the record is complete, the RO/AMC should obtain any outstanding, relevant records pertaining to the claims on appeal.  This includes any VA treatment reports dated since July 27, 2012 from the VA Medical Center in Richmond, Virginia.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  The RO/AMC should also provide the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal.  Such letter should specifically request any evidence of medical treatment since July 2012 as well as information regarding the private chiropractor opinion linking his right hip osteoarthritis to his service-connected lumbar spine disability.  Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.  

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran to request the names and addresses of all medical care providers who have treated him for a right hip disorder since July 2012 as well as information regarding the private chiropractor that linked his right hip osteoarthritis to his service-connected lumbar spine disability.  After the Veteran has signed the appropriate releases, those records should be obtained and those records not already associated with the claims file should be associated with the claims file.
 
The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit records for VA review.  All attempts to procure records should be documented in the file.  If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file.  

2.  Request all outstanding, relevant treatment records from the VA Medical Center in Richmond, Virginia since July 27, 2012.  All records obtained should be associated with the claims file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit records for VA review.  All attempts to procure records should be documented in the file.  

If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.

3.  After all records and/or responses received are associated with the claims file, return the Veteran's claims file to the physician who provided the December 2012 medical opinion for a supplemental opinion regarding his currently diagnosed right hip osteoarthritis with subchondral sclerosis and cyst formation.  Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review.

Following a review of the claims file, to include the December 2012 opinion and any additional evidence added to the record since then, the physician should opine whether it is at least as likely as not that the Veteran's right hip osteoarthritis with subchondral sclerosis and cyst formation is proximately due to (i.e., caused by) or has been permanently worsened (i.e., aggravated) by any of his service-connected disabilities, to include degenerative disc disease of the lumbosacral spine, degenerative joint disease of the left hip, degenerative joint disease of the right and left knees, fractured left ankle, or radiculopathy of the bilateral lower extremities.  

If the physician is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained.  That is, the reviewing physician must specifically explain why the cause of any diagnosed right hip disorder is unknowable.  A complete rationale must accompany each opinion offered.

An examination should be ordered only if the physician completing the opinion deems one necessary.

4.  After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA.  If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once.  
 
5.  The Veteran is to be notified that it is his responsibility to report for any examinations and to cooperate in the development of his remaining claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.
 
6.  Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issue remaining on appeal.  All applicable laws, regulations, and theories of entitlement should also be considered.  If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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 D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs