Citation Nr: 1327689	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  11-13 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an increased rating for postoperative ankylosis of the left ring finger, currently evaluated at 10 percent disabling.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1970 to December 1979.  

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from an January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) - which confirmed and continued a noncompensable rating.

The Veteran testified at an RO hearing in June 2011.  In an October 2011 Supplemental Statement of the Case, the RO increased the rating for the ankylosis of the left ring finger to 10 percent, retroactively effective from November 19, 2009, the date of receipt of the claim for a higher rating for this disability.  The Veteran since has continued to appeal for an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication to the contrary).


FINDINGS OF FACT

1.  The Veteran is right-hand dominant (right handed), so his left finger disability affects his minor rather than major hand.

2.  Although there was no amputation, there are objective clinical indications of inability to make a fist, unfavorable ankylosis of the left ring finger, and severe functional impairment in the left hand, akin to amputation with metacarpal resection (more than one-half bone loss).


CONCLUSION OF LAW

The criteria are met for an increased rating of 20 percent, but not higher, for postoperative ankylosis of the left ring finger.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.21, 4.27, 4.40, 4.41, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5155, 5227 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations provide, upon the submission of a complete or substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, as well as the duty to notify the claimant of what evidence will be obtained by whom, him versus VA.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining supporting evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The Veteran has received this required notice and assistance with his claim.  By way of a November 2009 letter, the RO notified him and his representative of the information and evidence needed to substantiate the claim for an increase in the rating for the disability - keeping in mind the rating at the time was 0 percent but, as mentioned, since has been increased to 10 percent, though no greater.  The Veteran was told that the evidence needed to show that his service-connected left finger disability had worsened.  In Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the U.S. Court of Appeals for the Federal Circuit overturned the ruling of the lower U.S. Court of Appeals for Veterans Claims (CAVC) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required and that VA does not also have to notify the Veteran of alternative diagnostic codes or to provide evidence indicating how his disability affects his daily life.  Consider as well that the RO provided him that letter before initially adjudicating his claim in January 2010, so in the preferred sequence.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  

The Board also finds the letter satisfies the statutory and regulatory requirement that VA notify him of the evidence that he needed to obtain in comparison to the evidence instead that VA would obtain for him.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letter, the RO notified him that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer.  Additionally, the letter asked that he submit medical evidence, opinions, statements, and treatment records regarding his disability.  So he has received all required notice concerning his claim.

There equally is no indication that any additional action is needed to comply with the duty to assist him with this claim.  The claims file includes his service treatment records (STRs) and post-service VA compensation examination reports from December 2009, March 2011, and July 2011.  These reports contain sufficient evidence by which to evaluate his left finger disability in the context of the rating criteria.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must ensure the examination is adequate).  See also 38 C.F.R. § 4.2 (indicating it is incumbent on VA to return an inadequate examination report for correction).

The Veteran had a VA hearing in June 2011 before a local DRO.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold.  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

During the hearing the presiding hearing officer (DRO) reminded the Veteran of the pertinent issue on appeal - his claimed entitlement to an increased rating for his left finger disability - and of how VA determines disability ratings.  He did not raise any new issues pertaining to this claim during the course of the hearing.  See Bryant, 23 Vet. App. at 497-98.  Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence (including, as here the scheduling of a VA examination) when such evidence is missing or has been overlooked has been satisfied.  See id. at 496-97.  The Veteran has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  

The Veteran has not made the RO or Board aware of any other evidence needing to be obtained in order to fairly decide this appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of his appeal has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103.

II.  Whether a Higher Rating is Warranted for the Left Finger Disability

The RO granted service connection for subluxation of the left ring finger in February 1980.  The Veteran filed an increased rating claim for his left ring finger disability in November 2009.  He has asserted that he cannot make a fist with his left hand because of his ring finger disability, cannot extend or straighten the finger as it is in a permanent "V" shape, and that he has a weak grip and often drops things.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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.  See 38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where entitlement to compensation already has been established, VA must address the evidence concerning the state of the disability from one year before the claim for an increase was filed until VA makes a final decision on the claim.  This relevant temporal focus includes determining whether there have been occasions when the disability has been more severe than at others, in which case the rating has to be "staged" to compensate the Veteran for this variance.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

The Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were expressly raised, as well as the entire history of this disability in reaching its decision.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).

Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. Only one extremity is considered to be major and a person is presumed to be 
right-handed, unless there is evidence of left-handedness.  38 C.F.R. § 4.69.  VA examination reports reveal the Veteran is right-handed.  So the rating for his left finger disability is to be made on the basis of the left upper extremity being the minor extremity.

The Veteran's service-connected left ring finger disability is rated under Diagnostic Code 5227.  See 38 C.F.R. § 4.71a.  According to this Diagnostic Code, a noncompensable rating is assigned for unfavorable or favorable ankylosis of the ring or little finger.  A note in this Diagnostic Code states that, in assigning a rating, consideration as to whether an evaluation as an 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.  Because of the extremely unfavorable ankylosis of his finger, the disability was rated by analogy to an amputation under Diagnostic Code 5155.  See 38 C.F.R. § 4.71a.

Under Diagnostic Code 5155, a 10 percent evaluation is warranted for amputation of the ring finger on the major or minor hand, without metacarpal resection, at the PIP joint or proximal thereto.  38 C.F.R. § 4.71a, Diagnostic Code 5155.  It is noted that single finger amputation ratings are the only applicable ratings for amputations of whole or part of single fingers.  38 C.F.R. § 4.71a, Diagnostic Code 5155, at Note.  To be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and PIP joints either in extension or full flexion or with rotation or angulation of a bone.  See Note 3(i) preceding 38 C.F.R. § 4.71a, Diagnostic Code 5216.  Note (3)(ii) explains that if both the metacarpophalangeal and PIP joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position.  Id at Note (3)(ii).  Note (3)(iii) indicates that if only the metacarpophalangeal or PIP joints were ankylosed and there was a gap of more than 2 inches (5.1 cm.) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis.  Id., at Note (3)(iii).

Because this disability is rated on the basis of the extent it causes limitation of motion, VA adjudicators must also consider whether there is evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  
Although 38 C.F.R. § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not limited to arthritis).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). 

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 38; see 38 C.F.R. § 4.40.  So not all painful motion constitutes limited motion.

Turning now to the facts and circumstances of this particular case.  The Veteran was afforded a VA examination in December 2009.  During that exam, he stated his left ring finger was painful constantly.  The examiner diagnosed him with ankylosis of the PIP joint, finding this caused an overall decrease in strength and dexterity of the left hand.  The examiner further noted that the ankylosis caused interference with and decreased function of the second and third fingers.  There was permanent flexion deformity of the PIP joint at 80 degrees, with no range of motion.  The examiner reasoned that there was no functional impact because there was no range of motion, but that any attempt at movement causes pain.  

The Veteran was also afforded a VA examination in March 2011 in conjunction with his claim for service connection for scarring secondary to the service-connected left finger disability.  Although not directly on point, the examination revealed the Veteran had "significant chronic flexion at the PIP [joint] and has limited movement of [his left ring] finger."  The examiner also found the Veteran had "significant limited range of motion" on this digit.

In his June 2011 DRO hearing, the Veteran testified that he couldn't make a fist because of the ankylosis and had limited grip.  He further testified he couldn't do normal daily activities such as wearing gloves or inserting his left hand into his left pants pocket.  

On the basis of the DRO hearing, the Veteran had a third VA examination in July 2011.  The examiner reported the Veteran "had a complicated injury" and that previous surgical attempts to repair it had failed.  He was left with a "chronic deformity and immobility of the left 4th digit at the DIP and PIP joints."  The examiner confirmed the ankylosis of the finger and the resulting limited use.  The examiner found the disability resulted in limited motion (including pain on active motion), swelling, deformity, weakness, and stiffness.  As in December of 2009, the angle of angulation was 80 degrees.  The disability had moderate/severe effects on the Veteran's daily activities, and the examiner concluded the Veteran's overall function of the left hand is severely limited.

Applying the criteria of Diagnostic Code 5155 together with the Deluca factors described above, the Board finds the Veteran's left finger disability meets the criteria for the next higher 20 percent rating.  38 C.F.R. § 4.7.  Although he has not had his left ring finger amputated, the Board finds that functionally the Veteran has "more than one half the bone lost," as is required for a 20 percent rating under this Diagnostic Code.  The evidence is replete with examples of the Veteran's pain, and this pain results in a higher rating because it causes additional functional loss.  DeLuca, 8 Vet. App. at 204-7.  The evidence also demonstrates that the Veteran's left ring finger is ankylosed at 80 degrees so that he cannot straighten or bend the finger.  He cannot make a fist with his left hand and it has been medically determined that the overall function of the left hand is severely limited.

This determination was based on consideration of applicable rating provisions.  It should also be pointed out in closing, however, that there is no suggestion the Veteran's left ring finger disability is so exceptional or unusual as to render impractical the application of the regular Rating Schedule standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  The symptoms of his disability, including his chronic pain, with ankylosis and severe functional impairment are contemplated in the applicable diagnostic code.  Without sufficient evidence reflecting that his disability picture is not contemplated by the Rating Schedule, referral for a determination of whether his disability picture requires the assignment of an extra-schedular rating is unwarranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).


ORDER

Entitlement to an increased rating of 20 percent, but not higher, for postoperative ankylosis of the left ring finger is granted, subject to the rules governing the payment of monetary benefits.



____________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs