Citation Nr: 1324128 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 05-31 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for the residuals of a gunshot wound (GSW) to the left hand resulting in a comminuted fracture of the left third metacarpal, currently rated as ankylosis of the long finger, prior to December 9, 2008, and a rating in excess of 10 percent since that date. 2. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a March 2010 rating decision, the RO increased the Veteran's disability evaluation for the service-connected left hand disability from zero to 10 percent disabling, effective, December 9, 2008. The Veteran has not contended that this satisfies his appeal for an increased rating. This issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). A Board decision in November 2010 denied the issue of an increased rating for the residuals of a GSW to the left hand. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in October 2011, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to this issue and remand the case for readjudication in accordance with the JMR. The November 2010 Board decision also remanded three issues: service connection for a muscle and/or orthopedic disability of the neck; service connection for an acquired psychiatric disability, to include posttraumatic stress disorder; and entitlement to TDIU. These issues were not subject to the JMR. Service connection has been granted for a muscle and orthopedic disability of the neck and for a psychiatric disability. In October 2012, the issues listed on the title page were remanded to afford the Veteran VA examinations. Review of the record as regards the issue of an increased rating for the residuals of a GSW to the left hand indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA opinions for the issue of entitlement to a TDIU are not adequate and an additional remand is necessary. The October 2012 remand characterized the left hand rating claim as including whether a separate disability rating for a muscle injury was warranted. Service connection for a muscle injury of the left hand was subsequently granted in June 2013. The issue of entitlement to a TDIU being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 9, 2008, the residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal did not cause ankylosis and did not result a gap of one inch (2.5 cm.) 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. 2. From December 9, 2008, the residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal causes painful motion and weakness of grip. CONCLUSIONS OF LAW 1. Prior to December 9, 2008, the criteria for a compensable rating for residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5226, 5229 (2012). 2. From December 9, 2008, the criteria for a rating in excess of 10 percent for residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5226, 5229 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in letters dated in October 2003, April 2005, March 2006 and July 2008 and the claim was readjudicated, most recently in a June 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in November 2003, December 2008, December 2010 and January 2013. 38 C.F.R. § 3.159(c)(4). The examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well-supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis The Veteran contends that he is entitled to increased ratings for his residuals of a GSW to his left hand resulting in a comminuted fracture of the left third metacarpal. See, e.g., October 2003 claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, the higher rating 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. Staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). The Board concludes that a staged rating is warranted. The Veteran's service-connected residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal is rated as zero percent or noncompensably disabling prior to December 9, 2008, and as 10 percent disabling since that date under 38 C.F.R. § 4.71a, DC 5226, which evaluates impairment from ankylosis of the long finger. As the Veteran is right handed, the criteria for the minor (non-dominant) hand apply. The only disability rating available under DC 5226 is 10 percent. 38 C.F.R. § 4.71a, DC 5226 (2012). A Note which follows the rating criteria provides for consideration of 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. Id. Limitation of motion of the index or long finger is evaluated under 38 C.F.R. § 4.71a, DC 5229. A zero percent or noncompensable rating is warranted with a gap of less than one inch (2.5 cm.) 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. 38 C.F.R. § 4.71a, DC 5229 (2012). A 10 percent rating is warranted with a gap of one inch (2.5 cm.) 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. A November 2003 VA examination shows that the Veteran reported some tightness of the hand with maximum flexion or occasional pain with stressing of the third digit. He had full active range of motion and some complaints of stiffness. Isolated nerve, tendon and vascular testing were otherwise unremarkable. The examiner opined that the Veteran's GSW to the left hand with long metacarpal fracture was moderately symptomatic. At a December 2008 VA examination, the Veteran reported pain with range of motion, primarily between the second and third metacarpals, which is where the debris track laid. He also had decreased grip and weakness. He did get flare-ups with increased pain with overuse. No braces were used. Daily activities were affected in decreased amount of grip and pain with repetitive motion. Examination revealed that he did not have any tenderness in the metacarpal area of the hand to palpation. The metacarpophalangeal joints of all four fingers flexed to 90 degrees and fully extended; proximal interphalangeal joints flexed to 100 degrees and fully extended; and distal interphalangeal joints flexed to 90 degrees and fully extended. Repeat flexion and extension of the fingers and the joints of the fingers did produce some discomfort between the second and third metacarpal and some weakness but no fatigue. He did have some weakness of grip. He did not have a gap between the fingertips and the palm with making a fist. A VA general medical examination in December 2010 shows that the Veteran reported that he worked as an electrician and was last employed in 2002 due to a motor vehicle accident. [Other evidence of record shows that the accident actually occurred in 2003.] He did not have an overall decrease in strength and dexterity of the hand. Other hand symptoms included pain. There were no flare-ups of hand disease. The Veteran described a sense of weakness and that he could not grip well with his left hand at a January 2013 VA examination. He reported occasional cramping sensation in fingers. He stated that he got cramps and spasms if he did too much. He had no flares and used no braces or aids. He had had no recent treatment or evaluation other than compensation and pension examinations. The Veteran had limited or painful motion of the long and ring fingers. There was no gap between the thumb pad and the fingers. There was a gap of less than one inch between the long and ring fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips. There was no objective evidence of painful motion and no limitation of extension or evidence of painful motion for the index or long fingers. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation of motion for any fingers. There was no gap between the thumb pad and the fingers post-repetition. There was a gap of less than one inch between the long and ring fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-repetition. There was no limitation of extension post-repetition. The Veteran had functional loss or functional impairment and no additional limitation in range of motion following repetitive-use testing. He had less movement than normal of the long and ring fingers; excess fatigability of the long and ring fingers; and deformity of the ring finger. There was pain on palpation. The Veteran had grip strength of 4/5. There was no ankylosis. The Veteran had palpable tenderness of the mid palm in area of bony overgrowth of old healed fracture of the ring finger metacarpal. He had weakness of abductors of the middle and ring fingers and ring finger with mild deviation on the ulnar side. He had mild trigger fingers at A1 pulley at middle, ring and small fingers. There was slight decreased sensation just distal to palm scar (less than one cm). Distal sensation was intact in all fingers. Tinel's and Phalen's test were negative. Compression of metacarpals when shaking hands was uncomfortable, but not painful. Motor function of all fingers was 5/5, but fatigues with repetition. There was no impairment of coordination or uncertainty of movement. Injury to muscle group IX was indentified. The examiner opined that the Veteran's hand, thumb or finger conditions did not impact his ability to work. Based on a review of the evidence, the Board concludes that a compensable rating prior to December 9, 2008, and a rating in excess of 10 percent from that date is not warranted. 1. Prior to December 9, 2008 During this period, the evidence failed to show symptomatology equating to unfavorable or favorable ankylosis; a gap of one inch (2.5 cm.) 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. The November 2003 VA examination showed that the Veteran had full active range of motion. As such, a compensable rating under either DCs 5226 or 5229 is not warranted. Although the November 2003 examiner opined that the Veteran's left had was moderately symptomatic, the actual symptoms shown on examination do not meet the criteria for a 10 percent rating under the applicable diagnostic codes. The Board has also considered whether an evaluation as amputation is warranted as provided by the Note following DC 5226. Considering that the Veteran had full range of motion, his symptomatology does not equate to amputation such that a compensable rating is warranted. The Note following DC 5226 also provides for an additional evaluation for resulting limitation of motion of other digits or interference with overall function of the hand. The evidence of record does not show that the Veteran had limitation of motion of other digits or interference with overall function of the hand. The Board has considered other diagnostic codes applicable to hand disabilities, but finds that the evidence does not show that a compensable rating is warranted as ankylosis and limitation of motion of other digits has not been shown. Therefore, a compensable rating for this period is not warranted. The Board has considered whether the Veteran has painful motion that contributes to the actual limitation of motion such that an increased rating is warranted. The evidence does not show that any pain experienced would warrant an increased rating. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). Although the Veteran had stiffness in November 2003, the examination failed to show evidence of disuse. Even with stiffness, he still had full active range of motion. Accordingly, the criteria for an initial compensable rating for limitation of motion for the Veteran's service-connected residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal have not been met for this time period. 38 C.F.R. § 4.71a, DCs 5226, 5229. 2. From December 8, 2009 During this period, the only rating available under the appropriate diagnostic codes is 10 percent, which the Veteran is currently receiving. Therefore, the Board has considered whether other diagnostic codes would provide for a higher or separate evaluation, but finds that none apply. The Veteran's GSW to the left hand resulting in a comminuted fracture of the left third metacarpal was not shown to cause ankylosis of the thumb or index finger; or limitation of motion of the thumb. Although the Veteran had limited and painful motion of the ring finger in January 2013, only a noncompensable evaluation is warranted for limitation of motion of the ring finger under DC 5230. The evidence for this period also fails to show interference with overall function of the hand such that an additional rating is warranted as provided under the Note following DC 5226. The Board has also considered whether an evaluation as amputation is warranted as provided by the Note following DC 5226. Even when considering the painful and limited motion shown in December 2008 and January 2013, his symptomatology does not equate to amputation such that a rating in excess of 10 percent is warranted. Therefore, a rating in excess of 10 percent for this period is not warranted. The Board has again considered whether the Veteran has painful motion that contributes to the actual limitation of motion such that an increased rating is warranted. The evidence does not show that any pain experienced would warrant an increased rating. See 38 C.F.R. § 4.40. The examinations and the Veteran's treatment records during this period failed to show evidence of disuse. The December 2008 and January 2013 examination reports reflect that the Veteran's painful motion was taken into account. Accordingly, the criteria for a rating in excess of 10 percent for limitation of motion for the Veteran's service-connected residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal have not been met for this time period. 38 C.F.R. § 4.71a, DCs 5226, 5229. Extraschedular Consideration The record shows that the Veteran worked as an electrician until a 2003 accident and has been unemployed since then. The Veteran has claimed entitlement to TDIU which will be addressed in the remand below, so the Board will adjudicate the issue of whether referral for an extraschedular rating for the increased rating claim decided herein is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the Veteran's service-connected disability, including his painful motion, are contemplated by the applicable rating criteria. The effects of the Veteran's disability has been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a compensable rating for the residuals of a GSW to the left hand resulting in a comminuted fracture of the left third metacarpal, currently rated as ankylosis of the long finger, prior to December 9, 2008, and a rating in excess of 10 percent since that date, is denied. REMAND A remand is necessary for the issue of entitlement to a TDIU. The issue was previously remanded to obtain an opinion as to whether the Veteran's service-connected disabilities, with emphasis on the left hand, render him unemployable. A rationale for the opinion was requested. VA examinations in December 2012, January 2013 and June 2013 all indicate that the Veteran's service-connected disabilities did not impact his ability to work; however, no rationales were provided. Since the opinions did not include rationales, they are not adequate and do not comply with the October 2012 remand directives. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall, 11 Vet. App. 268. Therefore, a remand is necessary to obtain adequate medical opinions. Accordingly, the case is REMANDED for the following action: 1. Obtain addendum medical opinions from the December 2012, January 2013 and June 2013 VA examiners (or, if unavailable, from medical professionals with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiners for review in connection with the opinions. The examiners are requested to provide rationales for their opinions that the Veteran's service-connected disabilities do not impact his ability to work. If the examiners are unavailable, or determine that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination to determine whether the Veteran's service-connected disabilities, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. 2. Ensure that the addendum reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 3. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs