Citation Nr: 1323880 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-29 567 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable rating for the service-connected right thumb sprain prior to August 27, 2011 and 20 percent beginning on that date. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active duty for training in the Army National Guard from April 1979 to September 1979. She served in the National Guard from March 1979 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the RO. In October 2008, the Veteran withdrew her request for a hearing with the Board. A rating decision in March 2012 increased the rating for the service-connected right thumb sprain to 20 percent effective on August 27, 2011. Thus the issue has been characterized as reflected on the title page. The Virtual VA paperless processing system was reviewed and includes VA treatments records from August 2011 to March 2012, some of which were received subsequent to the last Supplemental Statement of the Case dated in April 2012. However, the records are found to be cumulative or duplicative of the other evidence of record and a waiver of initial RO consideration is not needed. See 38 C.F.R. § 20.1304. The Board notes that the issue of service connection for a skin disorder was previously characterized as service connection for eczema. The Court of Appeals for Veteran Claims has held (in the context of a claim for service connection for a psychiatric disorder) that a claim for service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of Clemons, the issue is recharacterized as entitlement to service connection for a skin disorder. The issue of service connection for a skin disorder is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 24, 2008 the service-connected disability picture is shown to have more nearly approximated that of arthritis of the right thumb with painful and limited motion; a limitation of motion manifested by opposition restricted to a gap of one to two inches between the thumb pad and the fingers was not demonstrated ; nor was ankylosis demonstrated. 2. Beginning on October 24, 2008, the service-connected disability picture is shown to have been productive of a functional limitation due to pain that more closely resembled that of a limitation of motion manifested by a gap of more than two inches between the thumb and the fingers; ankylosis is not demonstrated. CONCLUSIONS OF LAW 1. Prior to October 24, 2008, the criteria for the assignment of an initial 10 percent rating for the service-connected right thumb disability on the basis of arthritis with painful motion have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40 , 4.45, 4.59, 4.71a including Diagnostic Code 5003 (2012). 2. Beginning on October 24, 2008, the criteria for the assignment of an initial rating 20 percent for the service-connected right thumb disability have been met. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5228 (2012). 3. The criteria for the assignment of a rating higher than 20 percent for the service-connected right thumb disability have not been met. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5224, 5228 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided a pre-adjudication VCAA notice by letter, dated in November 2006. Where, as here, service connection has been granted and initial ratings have been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disabilities, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Additionally, the Veteran was afforded VA examinations in February 2007, October 2008, and in August 2011. The Board finds the service and post-service treatment records and the VA examinations are adequate for rating purposes. Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed during the relevant time period and a staged rating is unwarranted. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The analyses focus on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The pertinent evidence is addressed in detail below. The Veteran's service-connected right thumb is rated under Diagnostic Code 5228. Diagnostic Code 5228 provides for a noncompensable rating when there is limitation of motion of the thumb with a gap of less than one inch between the thumb pad and the fingers, when the thumb is attempting to oppose the fingers. For a 10 percent rating, there must be a gap of one to two inches between the thumb pad and the fingers when the thumb is attempting to oppose the fingers. With a gap of more than two inches between the thumb pad and the fingers, a 20 percent rating is assigned. A 20 percent evaluation is the maximum rating under the provisions of Diagnostic Code 5228. Diagnostic Code 5224 provides that ankylosis of the thumb warrants a 10 percent rating if it is favorable or a 20 percent rating if it is unfavorable. Facts On VA examination in February 2007, the Veteran complained of pain and stiffness of the right thumb. She did not note any specific flare-ups, but stated that cold weather made her symptoms worse. The examiner noted that the Veteran was neurologically intact with regard to sensation in the right upper extremity: however, she had some subjective sensory loss in the anatomic distribution that did not specifically represent any nerve distribution. The Veteran complained of a tingling feeling over the palmar aspect of the thenar eminence as well as the back portion of her hand. The examiner found no notable anatomic defects. There was no varus valgus laxity at the metacarpal phalangeal joint, and there was good endpoint testing of the radial and ulnar collateral ligaments at both 0 and 30 degrees of flexion. There were no sensory deficits to the radial or ulnar aspects of the thumb. The Veteran was able to extend the thumb to the interphalangeal joint but was unwilling to extend it to the carpal metacarpal joint. The X-ray studies of the right hand and wrist were normal. The VA medical records show that, in May 2007, the Veteran complained of locking of her right thumb when it was in extension. The assessment was that of trigger finger of the right thumb and degenerative joint disease of the right thumb in the carpometacarpal joint. In July 2007 the Veteran underwent a right Al-pulley release of the thumb. In November 2007 the records show that the Veteran had a full passive range of motion of the thumb. On VA examination in October 2008, the Veteran reported increasing pain since her last examination. She complained of flare-ups of pain on a weekly basis. The examiner was unable to perform an examination since the Veteran held her hand in a fixed, immovable, semipalmar position with just minimal palpable pressure and expressed complaints of severe, excruciating and unrelenting pain. The VA progress notes in March 2009 showed that the Veteran could barely touch her right thumb and hand. In January 2010, she was unable to finish an EMG nerve conduction study due to poor tolerance of the procedure. In January 2011, the Veteran complained of right thumb pain radiating up her right arm, and her assessment was that of tendinitis of the right thumb. A VA x-ray study in September 2010 showed that the right thumb was unremarkable. On VA examination in August 2011, the x-ray studies showed no narrowing of joint space. The examiner concluded that the Veteran had limitation of range of motion and strength in her right thumb and had difficulty with opposition to the fingers and palm. The examiner noted that there was no evidence that the right thumb was ankylosed and that the x-ray studies did not show ankylosis of the right thumb, but did not show significant degenerative joint disease. The examiner explained that sometimes basilar thumb arthritis was hard to pick up on radiographs, and the diagnosis should rely on clinical findings. Analysis Prior to October 24, 2008 Prior to October 24, 2008, the service-connected right thumb disability was rated at noncompensable level. On VA examination in February 2007, the Veteran had good endpoint testing of the radial and ulnar collateral ligaments at 0 and 30 degrees of flexion. In November 2007 VA records show the Veteran had full passive range of motion of the thumb. As the criteria for a 10 percent rating under Diagnostic Code 5228 requires a gap of one to two inches between the thumb pad and the fingers when the thumb is opposed to the fingers, the range of motion findings do not meet these criteria even with consideration of any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus the Veteran is not entitled to a higher initial rating of 10 percent under Diagnostic Code 5228. While the Veteran had painful motion, there is no probative evidence that she had favorable or unfavorable ankylosis of the right thumb. The VA treatment records in May 2007 show that the Veteran complained of locking of her right thumb and provided an assessment of trigger finger of the right thumb. Thus the Veteran is not entitled to a higher rating on the basis of ankylosis under Diagnostic Code 5224. To the extent that there were subjective complaints of sensory loss on VA examination in February 2007, there was not actual showing of a neurological impairment as the examiner concluded that there were no sensory deficits in the right thumb. Thus, a separate rating based on neurological impairment is not warranted. The VA records in May 2007 reported that the Veteran had degenerative joint disease of the right thumb and the Veteran during this period has complained of painful motion in her right thumb. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is some limitation of motion of the specific joint or joints involved that is noncompensable (no percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for 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. On VA examination in August 2011 the examiner explained that basilar arthritis of the thumb was hard to pick up on radiographs and the diagnosis should rely on clinical findings. Thus, in resolving reasonable doubt in favor of the Veteran, the Board finds that she has degenerative arthritis of the right thumb. As the Veteran has exhibited a noncompensable functional loss due to pain and has diagnosis of degenerative joint disease for this initial period of the appeal, a rating of 10 percent is assignable under 38 C.F.R. § 4.71a, 5003. This is the highest schedular rating available based on arthritis that involves one joint or joint group. From October 24, 2008 At the time of the VA examination in October 2008, the Veteran first was reported to have severe, excruciating and unrelenting pain. VA progress notes in March 2009 showed that she could barely touch her hand and right thumb. Thus, on this record, the service-connected disability picture is shown to more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 5228 beginning on October 24, 2008. As discussed, the rating decision in March 2012 granted the Veteran a 20 percent rating effective on August 27, 2011. A 20 percent evaluation is the maximum rating under the provisions of Diagnostic Code 5228. While the Veteran had painful motion, there is no probative evidence that she experiences either favorable or unfavorable ankylosis of the right thumb for a higher rating under Diagnostic Code 5224. Although she complained of some pain in January 2011, the examiner provided an assessment of tendinitis of the right thumb. As there is no objective finding of neurological impairment, a separate rating based on neurological impairment is not warranted. As discussed, under Diagnostic Code 5003, when there is some limitation of motion of the specific joint or joints involved that is noncompensable (no percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion. In this light, the Veteran is in receipt of a 20 percent rating under Diagnostic Code 5228 based on limitation of motion of the thumb. For these reasons the Veteran during this period is not entitled to a separate rating under Diagnostic Code 5003. Lay Statements The Board acknowledges the Veteran's statements regarding the severity of her right thumb condition over the course of the appeal. The Board further notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In addition, the Board must place significant weight on the findings reported by skilled medical examiners in addressing the claim for increase in terms of the established rating criteria. Here, on this record, the Veteran currently is found to have been assigned the highest rating for the service-connected thumb disability available of the basis of limitation of motion or ankylosis based on the established rating criteria. A higher rating would require a disability picture consistent with amputation of the thumb. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, it does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. If the criteria reasonably address the service-connected disability picture, it is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to her service-connected right thumb sprain. The Board finds that the Veteran's service-connected right thumb strain is manifested by symptoms such as pain and limitation of motion, which are contemplated by the rating criteria. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Prior to October 24, 2008, an initial rating of 10 percent for the service-connected right thumb disability based on arthritis and painful motion is granted, subject to the regulations applicable to the payment of monetary benefits. Beginning on October 24, 2008, an initial rating of 20 percent for the service-connected right thumb disability is granted, subject to the regulations applicable to the payment of monetary benefits. An increased rating higher than 20 percent for the service-connected right thumb disability is denied. REMAND The private medical records in January 2005 showed that the Veteran had eczematoid dermatitis on the upper and lower extremities and excoriated lesions on the chin and jaw line. In April 2007 the Veteran reported that, after she went into a gas chamber during service, she started having problems with the skin on her face. She reported that her face was peeling. The VA progress notes in April 2007 showed that she had complained of skin problems since service. The examiner noted that she had a hyperpigmented lesion on her chin. On VA examination in November 2008, the diagnosis was that of acne excoriée with postinflammatory hyperpigmentation. The examiner concluded that the Veteran's current skin condition was less likely than not related to her rash during active duty service based on his review of the "[V]eteran's C-file there [was] no documentation of acne or hyperpigmented lesions. There [was] only a notation of suburn and sensitivity." However, the examiner in rendering the opinion did not address the Veteran's report that she started having skin problems after she performed training activities in a gas chamber during service. The Veteran throughout the appeal period consistently reported that she was in a gas chamber during service and she is competent to report her observations of skin problems in service. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). For these reasons the opinion is inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr, 21 Vet. App. 303, 312 (2007). Therefore, the Veteran should be scheduled for another VA examination to determine the nature and etiology of her skin disorder. Accordingly, the case is REMANDED for the following action: 1. The RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed skin disorder. The claims folder should be made available for review by the examiner. After reviewing the entire record and examining the Veteran, the examiner should opine as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that she has a current skin disability manifested by eczematoid dermatitis, hyperpigmented lesions or acne that had its clinical onset during service or is due to an event or incident during her period of service. The examiner should elicit from the Veteran and record a complete clinical history as to the claimed skin condition to include her developing skin manifestations after performing training in a gas chamber during service. The examiner must take a complete history from the Veteran as to the nature and onset of her skin manifestations during service and thereafter. For purposes of the opinion being sought, the examiner should specifically address the following: The service treatment records during service in 1979 showing that the Veteran had a rash on her face with an impression of photosensitivity and was treated for insect bites and sunburn on her face and neck. The Veteran's private doctor's statement in July 2008 that her contact with chemicals in a gas chamber could have caused contact eczematoid dermatitis. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports, must be acknowledged and considered in formulating any opinion. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until she is otherwise notified by the RO. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs