Citation Nr: 1323692 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-01 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for laceration of right long finger and right ring finger, status post excision bony exostosis at the proximal interphalangeal (PIP) joint right long finger. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT The Veteran's right long finger and right ring finger disability is characterized by limitation of extension to 30 degrees of the PIP joint, with intermittent pain and swelling. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for right long finger and right ring finger disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104(a) (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5226, 5227, 5229, 5230, 4.124a, Diagnostic Codes 8515 and 8516 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has been assigned a 10 percent disability rating for a laceration of the right long finger and the right ring finger, status post excision bony exostosis at the PIP joint right long finger. The Veteran contends that his right long finger and right ring finger disabilities are more severe than is indicated by the 10 percent disability rating currently assigned. 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. 38 U.S.C.A. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. 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. Id. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-1998. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, 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. The Veteran's right long finger and right ring finger disabilities have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229. Diagnostic Code 5229 denotes limitation of motion for the index or long finger. A noncompensable rating is warranted for a gap of less than one inch (2.5 centimeter) 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. Id. A 10 percent disability rating, the maximum available, is warranted for a gap of one inch (2.5) centimeter 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. Id. Notably, 38 C.F.R. § 4.71a, Diagnostic Code 5230 denotes limitation of motion for the ring or littler finger. A noncompensable rating is warranted for any limitation of motion. Diagnostic Code 5230 provides no compensable rating. Id. Other Diagnostic Codes applicable to the Veteran's right long finger and right ring finger disabilities include Diagnostic Codes 5226, 5227, 8515, 8516. Diagnostic Code 5226 denotes ankylosis of the long finger. 38 C.F.R. § 4.71a. A maximum 10 percent disability rating is warranted for unfavorable or favorable ankylosis of the long finger. Id. Diagnostic Code 5227 denotes ankylosis of the ring finger. 38 C.F.R. § 4.71a. A noncompensable rating is warranted for unfavorable or favorable ankylosis of the ring finger. Diagnostic Code 5227 provides no compensable rating. Id. Diagnostic Code 8515 denotes paralysis of the median nerve. Under Diagnostic Code 8515, complete paralysis of the median never includes the hand inclined to the ulnar side, the index and middle fingers more extended than normally, conservable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flection of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 38 C.F.R. § 4.124a. For incomplete paralysis, a 10 percent rating is assigned for a mild disability, a 30 percent rating is assigned for a "moderate" disability afflicting the major, or dominant, hand, and a 50 percent rating is assigned for a "severe" disability afflicting the dominant hand. For complete paralysis a 70 percent rating is assigned for the dominant hand. Id. Diagnostic Code 8516 denotes paralysis of the ulnar nerve. Under Diagnostic Code 8516, complete paralysis of the ulnar nerve includes the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a. For incomplete paralysis, a 10 percent rating is assigned for a mild disability, a 30 percent rating is assigned for a "moderate" disability afflicting the major, or dominant, hand, and a 40 percent rating is assigned for a "severe" disability afflicting the dominant hand. For complete paralysis, a 60 percent rating is assigned for the dominant hand. Id. The Board notes that the words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather then applying a mechanical formula, the Board must evaluate all of the evidence in order that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology, such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of a Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). A review of the Veteran's service treatment records (STRs) shows that in May 1982 the Veteran received emergency treatment after cutting his right ring, middle, and index fingers on a light bulb. After examination he was assessed with abrasions to his right index and ring fingers and a laceration to his right middle finger. He was treated with sutures on his right middle finger and his right middle and ring fingers were dressed with gauze. He was advised to return in one week for suture removal. Further STRs show that the Veteran continued to have pain and swelling in his right middle finger following the removal of the sutures. STRs reflect that due to his persistent symptoms in his right middle finger, the Veteran was diagnosed with an exostosis involving the PIP joint of the right middle finger causing extension lag. In January 1983, he underwent an excision of the exostosis. On April 1983 separation examination the Veteran was noted to have a 3 centimeter scar on the third digit of his right hand and it was noted that he underwent surgery on the third digit on his right hand in January 1983. On the associated report of medical history, the Veteran reported a history of swollen or painful joints and responded "Don't Know" with regard to whether he had "loss of finger or toe." The Veteran was afforded a VA examination in February 2009. At that time he reported his in-service injury to his right long and ring fingers and reported that he began to develop problems with those fingers in the 1990s. He reported that he had problems performing lifting and gripping activities and that the pain was usually localized in the PIP joints. He denied any postservice injury to the fingers on his right hand. He reported intermittent pain daily involving the PIP joints of the right long and right ring fingers. He reported that the joints occasionally swell, but did not lock. He endorsed flare-ups with gripping and lifting activities, but denied any additional weakness or restricted range of motion of the hand during flare-ups. He reported that during a flare-up while at his job as a janitor, he would modify his work related activities, and take naps, and that the symptoms would ease after approximately 30 minutes. He denied the use of a brace for his right long and ring finger disabilities and denied any incapacitation over the preceding 12 months, providing evidence against his own claim. On examination, the Veteran was found to have healed scars over the right long finger and the right [ring] finger. The examiner noted that the scar over the right ring finger measured 3 centimeters over the proximal dorsum and extended over the PIP joint. The scar was hyperpigmented, flat, nontender, and intact. It was of normal sensation and no swelling or joint deformity was noted. The scar on the right long finger was noted to be 1.5 centimeters and mainly over the PIP joint. It was tangential and flesh colored. It was flat, nontender, and nonadherent. There was no loss of subcutaneous tissue on examination of either scar. The scars were not cosmetically significant and did not affect the range of motion of the joints in either finger, providing highly probative evidence against this claim. Examination of the hand revealed no appreciable swelling. The fingers aligned normally throughout. There was slight flexion of the PIP joint of the long finger and ring finger on the right hand. The PIP joints did not reveal any swelling or tenderness. He had good grip strength with the right hand without weakness. He was able to fully flex all the fingers across the palmar crease without difficulty. He had normal opposition with the thumb to the fingers of the right hand throughout. The fingers, as well as the hand, were nontender to touch. The small joints of all fingers in the right hand were nontender to palpation. The Veteran had full range of motion in the metacarpophalangeal (MCP) joints in all fingers, with no pain. The PIP joints of the long finger and the ring finger lacked 30 degrees extension, with pain at 30 degrees. The Veteran could flex the PIP joints of the long finger and ring finger of the right hand to 90 degrees without pain in either finger. He could extend the distal interphalangeal (DIP) joints in the long finger and ring finger to 0 degrees and flex to 20 degrees without pain in either finger. Neuromuscular function was grossly normal in the right hand and the fingers of the right hand without any deficit. The examiner noted that there was no additional weakness, fatigability, incoordination, restricted range of motion, or functional impairment following repetitive testing. Associated with the examination report is a February 2009 X-ray report showing a normal right hand, providing more evidence against this claim. The examiner diagnosed laceration right long finger and right ring finger, postoperative excision bony exostosis PIP joint right long finger. VA treatment records associated with the claims file show that the Veteran seeks intermittent care for his right long and right ring finger disabilities. These records include an X-report from December 2007 which showed mild soft tissue swelling without radiographically visible osseous abnormality. There is no evidence from these records that the Veteran's finger disabilities are more severe than what is reflected in the February 2009 VA examination report. At the outset, the Board notes that the rating schedule outlines separate diagnostic codes for disabilities of the long finger and the ring finger. As noted above, Diagnostic Code 5226 addresses ankylosis of the long finger and Diagnostic Code 5229 addresses limitation of motion of the long finger, while Diagnostic Code 5227 address ankylosis of the ring finger and Diagnostic Code 5230 addresses limitation of the ring finger. The Board notes that in this case, the RO has assigned the Veteran a disability rating for the disability affecting his long and ring finger together under Diagnostic Code 5229 for limitation of the long finger. The Board finds that the Veteran has not been prejudiced by this rating, as neither of the diagnostic codes pertaining to the ring finger alone provide for a compensable disability rating. Therefore, the Board will keep the right long finger and ring finger disabilities rated together under Diagnostic Code 5229. Based on the evidence of record, the Board finds that a disability rating in excess of 10 percent for the Veteran's right long finger and right ring finger disabilities is not warranted. In this regard, the Board notes that the Veteran has met the criteria for a 10 percent disability rating under Diagnostic Code 5229, as he has limitation of extension of the PIP joint in his right long finger and right ring finger to 30 degrees. Significantly, the Board notes that Diagnostic code 5229 does not provide for a disability rating higher than the 10 percent. Additionally, there is no evidence that the Veteran has ankylosis of his right long or ring fingers and therefore, assigning disability ratings under Diagnostic Codes 5226 or 5227 is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5226, 5227, 5229. The Board notes that the Veteran's reported pain on motion was accounted for by the examiner when determining the Veteran's range of motion. The examiner stated that there was no additional pain, weakness, fatigability, incoordination, restricted range of motion, or functional impairment following repetitive testing. There is no other evidence showing that the Veteran has more limitation of motion than that found on his VA examination. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for the functional impairment of the Veteran's right long finger and right ring finger disabilities. Consideration has been given to assigning a higher disability rating under another diagnostic code. However, there is no evidence that the Veteran has suffered damage to his median or ulnar nerves, and the VA examiner noted that the neuromuscular function was grossly normal. Therefore, the Board finds that a disability rating under Diagnostic Codes 8515 or 8516 for paralysis of the median or ulnar nerves is not appropriate at this time. 38 C.F.R. § 4.124a. Consideration has also been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the Veteran's right long finger and right ring finger disabilities are contemplated by the schedular criteria. There is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for his right long finger or right ring finger disabilities. Additionally, there is no indication from the record that the Veteran is unable to work as a result of his finger disabilities, in fact the record reflects that the Veteran works as a janitor and that he is able to modify his duties to account for flare-ups of symptoms of his finger disabilities. In sum, there is no indication that the average industrial impairment from the Veteran's right long finger and right ring finger disabilities would be in excess of that contemplated by the assigned disability rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In this regard, it is important for the Veteran to understand that without taking into consideration his concerns there would be little basis for the current evaluation, let alone a higher evaluation. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is re-adjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2008 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained pertinent VA treatment records and the Veteran was afforded a VA medical examination in February 2009. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an initial disability rating in excess of 10 percent for laceration of right long finger and right ring finger, status post excision bony exostosis PIP joint right long finger is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs