Citation Nr: 1323360 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-22 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 10 percent disabling for right hand degenerative joint disease (DJD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Los Angeles, California. On his substantive appeal, the Veteran requested a Travel Board hearing. Subsequently, in July 2009, the Veteran withdrew his request for a Board hearing in writing. Therefore, the Veteran's request for a Board hearing is considered withdrawn, and this matter is ready for further review. The Board notes that since the Veteran's claim has been on appeal, service connection for residual scars of the right long and ring fingers was separately granted by way of an unappealed April 2012 rating decision. Therefore, those ratings are not presently before the Board. FINDING OF FACT The Veteran's right hand DJD is manifested by painful motion; no ankylosis is shown; no gap of at least one inch (2.5 centimeters) is shown between the thumb pad and the fingers; no gap of at least one inch (2.5 centimeters) is shown between the tip of the index or long finger and the proximal transverse crease of the palm; extension of the index and long fingers is not shown to be limited by more than 30 degrees; limitation of motion of the ring and little finger is shown. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent disabling for right hand DJD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for a higher evaluation for his right hand DJD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, the Board finds that VCAA letters dated in May 2008, July 2008, and March 2009 satisfied the notice requirements of the VCAA. The letters informed the Veteran of what type of evidence was needed to substantiate his claim, which evidence he was responsible for submitting, and which VA would obtain. The notice letters also explained how VA assigns disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes that VA's duty to assist has been satisfied. Despite the above noted VCAA letters asking the Veteran to identify any outstanding treatment records relating to his claim, at no time has the Veteran referenced any relevant outstanding treatment records. Therefore, as the Veteran has not referenced any outstanding treatment records relating to his claim, the Board finds that the duty to assist in this regard has been satisfied. VA's duty to assist sometimes includes the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran was provided with VA examinations in August 2008 and March 2013. There is no evidence indicating that there has been a change in the severity of the Veteran's disability since the time of the last VA examination, including no assertion of such made by the Veteran. See 38 C.F.R. § 3.327(a) (2012). The Board finds the August 2008 and March 2013 VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran and provided the information necessary to evaluate the Veteran's right hand DJD under the applicable rating criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2012). Where service connection has already been established and an increase in the disability rating is in issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability in issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's right hand DJD is currently assigned a 10 percent disability rating under Diagnostic Code 5010, effective April 10, 2006. See 38 C.F.R. § 4.71a (2012). The Veteran seeks a higher rating. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by x-ray findings is to be rated under the rating criteria for degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by x-rays, 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 code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. A 20 percent rating is provided for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.45(f), multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered groups of minor joints and are ratable on a parity with major joints. Thus, the Veteran's hand and fingers are generally encompassed as a group of minor joints, and may be rated as such. Ankylosis or limitation of motion of single or multiple digits of the hand is evaluated under Diagnostic Codes 5216 through 5230. 38 C.F.R. § 4.71a (2012). Note 5 to this section directs that, if there is limitation of motion of two or more digits, each digit is to be evaluated separately and the evaluations are to be combined. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) citing Dorland's Illustrated Medical Dictionary, 91 (27th ed. 1988). As outlined above, Diagnostic Codes 5010 and 5003 generally provides for rating traumatic arthritis based on limitation of motion. Therefore, the Board will consider whether the Veteran is entitled to a higher rating for his right hand DJD based on limitation of motion. As an initial matter, ankylosis is neither alleged nor demonstrated by any of the evidence of record. Therefore, the Board need not consider whether higher ratings are warranted based on unfavorable ankylosis of multiple digits (Diagnostic Codes 5216 through 5219); favorable ankylosis of multiple digits (Diagnostic Codes 5220 through 5223); or ankylosis of individual digits (Diagnostic Codes 5224 through 5227). Diagnostic Code 5228 assigns a 10 percent evaluation for a gap of 1 to 2 inches (2.5 to 5.1 centimeters) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating evaluation is assigned when there is a gap of more than 2 inches (5.1 centimeters) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. Diagnostic Code 5229 provides a 10 percent rating where the evidence demonstrates limitation of motion of the index or long (middle) finger with a gap of 1 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. Diagnostic Code 5230 assigns a 0 percent rating for any limitation of motion of the ring or little finger. The August 2008 VA examination report reflects that the Veteran reported experiencing constant pain in his fingers, especially due to cold weather. He reported that with pain he was still able to function, and that he was not receiving any medical treatment for the condition. The examiner noted that both of the Veteran's hands are dominant, and that he was able to write, eat, and comb his hair with both hands. It was noted that the Veteran can tie his shoelaces, fasten buttons, and pick up a piece of paper and tear it without difficulty. Range of motion testing revealed right wrist palmar flexion to 80 degrees (normal) and dorsiflexion to 70 degrees (normal), which was noted as not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. With the right thumb pad (not tip) attempting to oppose the fingers, gaps were measured between the thumb pad and all fingers of less than 2.5 centimeters. The examiner noted that the Veteran's right hand fingertips were all able to approximate the transverse crease of the palm. Right hand strength was noted as slightly reduced. The examiner noted that the Veteran's right thumb and index finger ranges of motion were not additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance, or incoordination. The examiner noted that while the Veteran's right long and ring finger joint function was additionally limited after repetitive use by pain, fatigue, weakness, and lack of endurance, he noted that it did not cause any more degrees of limitation of motion, and no additional limitation due to incoordination was noted. The examiner noted that while the Veteran's little finger joint function was additionally limited after repetitive use by pain and fatigue, he noted that it did not cause any more degrees of limitation of motion, and no additional limitation was noted due to weakness, lack of endurance, or incoordination. A diagnosis of DJD of the right hand was recorded. The examiner noted that the Veteran worked for the railroad as an engineer, and that the effect of his right hand disability on his occupational functioning was that he could perform most activities except that he had decreased grip and would not be able to sustain such activities. The March 2013 VA examination report reflects that the Veteran reported experiencing constant pain in his fingers with activity. He was noted as right hand dominant (as opposed to the prior examination). Flare-ups were reported as impacting hand function particularly in the wintertime. Examination revealed objective evidence of painful motion in his right thumb and all fingers. With the right thumb pad (not tip) attempting to oppose the fingers, no gap between the thumb pad and any of his fingers was shown. In attempting to touch the palm with the right fingertips, the examiner noted that there was no gap between the index fingertip or long fingertip and the proximal transverse crease of the palm; a gap of one inch or more was noted for the ring finger, and a gap of one inch or less for the little finger. Extension in all of his fingers was noted as not limited by more than 30 degrees. No additional limitation of motion was noted after repetitive testing. Muscle strength was noted as 4/5. No ankylosis was specifically noted. In light of the above, the Board finds the preponderance of the evidence is against assigning a rating in excess of the current 10 percent rating. As noted above, the Board is cognizant that Note 5 to Diagnostic Codes 5216 through 5230 provides that limitation of motion of two or more digits is to be evaluated separately and then combined. See 38 C.F.R. § 4.71a (2012). A compensable rating under Diagnostic Code 5228 is not warranted for limitation of motion of the thumb, however, because no gap of at least one inch (2.5 centimeters) between the thumb pad and the fingers was shown on VA examination in August 2008 or March 2013. A compensable rating under Diagnostic Code 5229 is not warranted for limitation of motion of the index or long finger because there is not a gap of at least one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, and extension is not shown to be limited by more than 30 degrees. Diagnostic Code 5230 provides a noncompensable rating for any limitation of motion of the ring or little finger. Therefore, rating based on limitation of motion would not provide the Veteran with an overall rating in excess of the 10 percent rating currently assigned for arthritis with painful motion in a group of minor joints under Diagnostic Code 5010. The Board acknowledges the Veteran's argument that he should be entitled to a 20 percent rating under Diagnostic Code 5010 for incapacitating exacerbations due to chronic pain. The Board notes, however, that the 20 percent rating for incapacitating exacerbations requires the involvement of two major joint groups or two groups of minor joints, whereas the Veteran's pain and limitation of motion in his digits only constitutes one group of minor joints. With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the Veteran's reported complaints of pain and painful motion. The Board finds, however, that painful motion is already contemplated by the currently assigned 10 percent rating under Diagnostic Code 5010 for painful motion of a group of minor joints with arthritis. See also Mitchell v. Shinseki, 25 Vet.App. 32 (2011) (holding that in rating limitation of motion outside of the context of Diagnostic Code 5003, painful motion alone may not be deemed limitation of motion). The Board has considered whether referral for an extraschedular rating is appropriate. "The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. . . 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. . ." Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet.App. 57, 60 (1993), and Floyd v. Brown, 9 Vet.App. 88, 95 (1996)). "Therefore, initially, 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. . .[I]f 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. Thun at 115. "[I]n the second step of the inquiry, 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 those provided by the regulation as 'governing norms.' 38 C.F.R. § 3.321(b)(1) (related factors include 'marked interference with employment' and 'frequent periods of hospitalization')." Thun at 115-116. "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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating." Thun at 116. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's right hand DJD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right hand DJD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As such, referral for an extraschedular rating is not appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the current 10 percent rating for the Veteran's right hand DJD is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the record raises the issue of entitlement to a total disability evaluation based on individual unemployability, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as the Veteran has not submitted lay or medical evidence of service-connected unemployability, and the record is otherwise devoid of such evidence, the issue has not been raised. In sum, the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent disabling for right hand DJD for the entire period on appeal; the benefit of the doubt rule is not for application. ORDER Entitlement to an evaluation in excess of 10 percent disabling for right hand DJD is denied. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs