Citation Nr: 1323354 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-20 242 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial, compensable disability rating for residuals of right index finger injury. 2. Entitlement to an initial, compensable disability rating for residuals of right long finger injury. 3. Entitlement to an initial, compensable disability rating for residuals of right ring finger injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to August 1964. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that granted service connection for sprains of the right index, long, and ring fingers, and evaluated each as 0 percent (noncompensable) disabling effective February 7, 2008. The Veteran timely appealed for higher initial ratings. Consistent with the evidence of record and the Veteran's statements, the Board has recharacterized each of the issues on appeal as shown on the title page of this decision. The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work. While the Veteran has indicated that he is unable to perform some activities due to his service-connected disabilities, he has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDINGS OF FACT 1. Throughout the initial rating period on appeal, the Veteran's residuals of right index finger injury have been manifested by pain and stiffness, with no demonstrated gap between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, and no limitation of extension; ankylosis and loss of use of the right hand are not demonstrated. 2. Throughout the initial rating period on appeal, the Veteran's residuals of right long finger injury have been manifested by pain and stiffness, with no demonstrated gap between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, and extension limited to 10 degrees at most; ankylosis and loss of use of the right hand are not demonstrated. 3. Throughout the initial rating period on appeal, the Veteran's residuals of right ring finger injury have been manifested by pain and stiffness, with no demonstrated gap between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, and extension limited to 10 degrees at most; ankylosis and loss of use of the right hand are not demonstrated. 4. Throughout the initial rating period on appeal, the Veteran has demonstrated painful limited motion, and deformity of the right index, long, and ring fingers; and has associated degenerative changes equivalent to arthritis of two or more minor joint groups, as part and parcel of his service-connected residuals of right index, long, and ring fingers. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for residuals of right index finger injury have not been met or nearly approximated. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229 (2012). 2. The criteria for an initial compensable evaluation for residuals of right long finger injury have not been met or nearly approximated. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229 (2012). 3. The criteria for an initial compensable evaluation for residuals of right ring finger injury have not been met or nearly approximated. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2012). 4. The criteria for a separate, initial 10 percent disability evaluation for associated degenerative changes equivalent to arthritis of two or more minor joint groups of the right fingers are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.61, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claims arise from his disagreement with the initial evaluations assigned following the grants of service connection. Courts have held that once service connection is granted, the claim is substantiated; additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to his claims for higher initial disability ratings have been obtained, to the extent possible. The RO provided the Veteran with an appropriate VA examination, and there is no evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined. The Board finds the examination report to be thorough and adequate upon which to base a decision with regard to his claims. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection has been established for residuals of right index finger injury, for residuals of right long finger injury, and for residuals of right ring finger injury. Each of the Veteran's right finger disabilities is rated as 0 percent (noncompensable) disabling either under Diagnostic Code 5229 (index and long fingers) or under Diagnostic Code 5230 (ring finger). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). 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 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of finger pain and hand function. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. There are rules that apply in evaluating the severity of limitation of motion of single or multiple digits of the hand. For instance, for the index, long, ring, and little fingers, zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered in a favorable position. For these fingers, the MCP joint has a range of zero to 90 degrees of flexion; the PIP joint has a range of zero to 100 degrees of flexion; and the distal interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. 38 C.F.R. § 4.71a, Note (1) preceding Diagnostic Code 5216 (2012). Ankylosis of the index finger, unfavorable or favorable, warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5225 (2012). Ankylosis of the long finger, unfavorable or favorable, warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5226 (2012). Ankylosis of the ring or little finger warrants a 0 percent (noncompensable) evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2012). VA also can consider whether evaluation as amputation is warranted, and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a, Note following Diagnostic Codes 5225, 5226, and 5227 (2012). Pursuant to Diagnostic Code 5229, a noncompensable evaluation is provided for the index finger or long finger where there is limitation of motion with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. A 10 percent evaluation is provided for the index finger or long finger where there is limitation of motion with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2012). Pursuant to Diagnostic Code 5230, any limitation of motion of either the ring finger or little finger is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2012). Historically, the Veteran's service treatment records show that he sprained the index finger on his right hand in August 1963, while playing softball; examination revealed no dislocation. In April 1964, the Veteran jammed the distal end of his right ring finger while playing softball. He sustained a mild subluxation of the distal joint, and was unable to extend the right ring finger; X-rays then revealed no fracture. X-rays taken in May 1964 revealed a chip fracture of the dorsal proximal aspect of the distal phalanx of the right ring finger at the distal interphalangeal joint. Extension of the right ring finger was possible in June 1964. Records show that the Veteran first reported problems with his right hand and fingers in February 2008. He indicated that he could not grasp anything with the three fingers, and that he had difficulties buttoning his shirt and tying his tie. He stated that he had pain every day, and took anti-inflammatory medications for temporary relief. The Veteran also reported having more pain when he used his right hand, and more pain on repetitive motion; and reported having no recent medical treatment. During an August 2008 VA examination, the Veteran reported that he was a catcher on a softball team, and that he broke the three middle fingers in active service and was casted. The Veteran reported that he was able to return to work and bend his fingers at the time, and that he always had stiffness and pain. He reported having difficulty with right hand grasps many years ago, and that he saw a surgeon at the time who did not recommend surgery. The Veteran reported that he learned to live with the pain. Current symptoms included right hand pain and soreness with stiffness in the mornings mostly, or with prolonged exertion. The Veteran reported taking over-the-counter anti-inflammatory medications periodically. History of an overall decrease in hand strength and a decrease in hand dexterity were noted. Examination of the Veteran's right hand in August 2008 revealed no amputation and no ankylosis of any digit. The examiner noted a "bend" deformity of the Veteran's index, long, and ring fingers at the proximal interphalangeal joint. There was no gap between any finger and proximal transverse crease of hand on maximal flexion of finger. Nor was there objective evidence of decreased strength for pushing, pulling, and twisting; or decreased dexterity for twisting, probing, writing, touching, and expression. Ranges of motion of the metacarpal phalangeal joints of the index, long, and ring fingers were to 90 degrees on flexion and to 0 degrees on extension (all normal). There was no additional loss of motion on repetitive use, and no objective evidence of painful motion. Ranges of motion of the proximal interphalangeal joints of the index, long, and ring fingers were to 80 degrees on flexion (out of a normal 100 degrees) and to 0 degrees on extension. Pain was noted at the extreme of motion and after repetitive use. There was no additional loss of motion on repetitive use of the joints. Ranges of motion of the distal interphalangeal joints of the index, long, and ring fingers were to 80 degrees on flexion and to 0 degrees on extension (all normal). There was no additional loss of motion on repetitive use, and no objective evidence of painful motion. The August 2008 examiner noted that the Veteran was able to make a tight hand grasp, but it took longer on the right hand than the left hand. X-rays taken of the right hand were negative. The Veteran described difficulty with small buttons, and that he could not play golf much. The examiner opined that the Veteran's right finger disabilities did not affect his employment. In September 2008, the Veteran reported that he is right-handed; and that the more he used his right hand, his fingers hurt and swell. Private treatment records, dated in November 2008, show that the Veteran was evaluated for right hand stiffness and pain. He reported his in-service injuries and medical history, and reported having no problems for a number of years. Examination of the fingers on the right hand revealed some swelling and thickening of the metacarpal phalangeal joints, but they were nontender. Proximal interphalangeal joints appeared normal. The Veteran had thickening across all distal interphalangeal joints. A lateral deviation of the right long finger was noted. There were normal ranges of motion of the metacarpal phalangeal joints of all fingers. Ranges of motion of the proximal interphalangeal joints of the index and long fingers were to 90 degrees on flexion (out of a normal 100 degrees), and the ring finger was to 100 degrees on flexion. Range of motion of the distal interphalangeal joints of the index finger (normally from 0 to 70 or 80 degrees) was to 60 degrees on flexion and to 0 degrees on extension; the long finger was to 40 degrees on flexion and to 10 degrees on extension; and the ring finger was to 60 degrees on flexion and to 10 degrees on extension. X-rays revealed narrowing of the proximal interphalangeal joint space in the right index, long, and ring fingers; and narrowing of the distal interphalangeal joint space with osteophyte formation in the index, long, and ring fingers. The private physician noted that the Veteran had weakness in his right hand, compared to his left hand; and that the Veteran noticed impairment in everyday activities from weakness and stiffness and limited motion. The Veteran's fine motor activities with the right hand were dramatically reduced, and the Veteran took a nonsteroidal anti-inflammatory as needed. In January 2009, the Veteran stated that he encountered considerable pain when he overused the fingers on his right hand; and that his service-connected disabilities affected everything he did involving his right hand. He stated that he had to change his golf grip to a baseball grip because his fingers did not extend inward enough to secure the golf club. Nor could he write well with a pen because his fingers did not close enough to hold a pen steady. His fingers also swelled and became sore during repetitive use and when he put stress on them, such as when doing yard work and gardening. Here, the Board finds significant motion of the Veteran's index, long, and ring fingers of the right hand, so that the service-connected disabilities may not be evaluated as either favorable or unfavorable ankylosis. Nor has any of the Veteran's fingers on the right hand been amputated. 38 C.F.R. § 4.71a, Note following Diagnostic Codes 5225, 5226, 5227 (2012). While the Veteran also complained of stiffness and pain in his right hand grip, the August 2008 examiner found no objective evidence of functional impairment; and indicated that the Veteran could make a tight hand grasp with his right hand. The private physician in November 2008 did note slight impairment (less than 10 percent) in everyday activities, mostly because of right hand weakness. In this regard, the evidence is against a separate disability rating for loss of use of the right hand based on interference with overall functioning. 38 C.F.R. § 4.63 (2012). The evidence in this case does not show that the Veteran meets the schedular criteria for a compensable disability rating under Diagnostic Code 5229 for either the right index or long finger. The August 2008 examiner found no gap between finger and proximal transverse crease of hand on maximal flexion of finger. Nor does Diagnostic Code 5230 provide for a compensable rating for the right ring finger. 38 C.F.R. § 4.7. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45. The Board has carefully considered the Veteran's statements to the effect that he has functional impairment in his right hand and fingers from pain, swelling, and weakness that interferes with his daily activities. 38 C.F.R. §§ 4.10, 4.40, 4.41, 4.44, 4.45, 4.59. While X-rays taken of the right hand in August 2008 were negative, there was objective evidence at the time of a "bend" deformity at the proximal interphalangeal joints of the index, long, and ring fingers. The private physician also noted a lateral deviation of the right long finger, as well as X-ray findings of narrowing joint space and osteophyte formation in the index, long, and ring fingers. 38 C.F.R. § 4.61. The Board notes that the evidence reflects long-standing pain and stiffness of the Veteran's right index, long, and ring fingers. Limitation of motion has been objectively confirmed by findings such as swelling and painful motion. The Veteran's private physician also noted some thickening across all distal interphalangeal joints, and that the Veteran's fine motor activities with the right hand were dramatically reduced. In this case, the provisions of 38 C.F.R. § 4.59 (2012) provide that symptomatic arthritis will be evaluated as warranting at least the minimum compensable evaluation. Given the findings of the August 2008 VA examination, the private treatment records, the Veteran's complaints, the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, and resolving reasonable doubt in the Veteran's favor, the Board finds that the overall evidence supports the assignment of an initial 10 percent disability rating under Diagnostic Code 5003 based on painful motion and deformity, and associated degenerative changes equivalent to arthritis of two or more minor joint groups of the right fingers. See 38 C.F.R. §§ 4.7, 4.59. Finally, an extraschedular evaluation is for consideration where service-connected disabilities present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disabilities. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluations assigned for the Veteran's service-connected residuals of right index finger injury, residuals of right long finger injury, and residuals of right long finger injury are adequate in this case. While the Veteran reports some functional impairment in daily activities involving his right hand and fingers, his functional impairment is contemplated by the schedular criteria for limited motion of multiple digits of the hand. The Veteran has not been hospitalized for right finger pain and impairment. In this case, the Board finds that the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disabilities. Therefore, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, the Board finds that the preponderance of the evidence is against initial, compensable disability ratings under Diagnostic Codes 5229 and 5230, based on limited motion of the right index, long, and ring fingers; and is in favor of a separate, single, initial 10 percent disability rating for painful motion and deformity, and associated degenerative changes equivalent to arthritis of two or more minor joint groups of the right fingers. (CONTINUED ON NEXT PAGE) In reaching this decision, the Board has resolved any doubt in favor of the Veteran. ORDER An initial, compensable disability evaluation for residuals of right index finger injury is denied. An initial, compensable disability evaluation for residuals of right long finger injury is denied. An initial, compensable disability evaluation for residuals of right ring finger injury is denied. A separate, initial 10 percent disability evaluation for painful motion and deformity, and associated degenerative changes equivalent to arthritis of two or more minor joint groups of the right fingers is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs