Citation Nr: 1330053 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-19 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable disability rating for ankylosis of the left little finger. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, granted service connection for left little finger ankylosis, assigning a noncompensable evaluation effective September 1, 2006. The Board remanded this issue in November 2010. In July 2010, the Veteran presented sworn testimony during a Central Office hearing in Washington, DC, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT The Veteran's service-connected left little finger disability has been manifested by ankylosis at the PIP joint that would be equally well served by amputation at that level. CONCLUSION OF LAW The criteria for a 10 percent initial disability rating, but not greater, have been met for the Veteran's service-connected left little finger ankylosis, evaluated as amputated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.71a, Diagnostic Code 5156 (2013). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice 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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The current issue on appeal stems directly from a claim for an initial compensable evaluation for a left finger disability, which is itself a downstream issue from a March 2007 rating decision, which initially established service connection for ankylosis of the left little finger and assigned the initial rating being contested. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thusly, to the extent that there is any defect in, or non-compliance with the statutorily prescribed VCAA notice requirements with respect to the claim for a higher initial evaluation for the finger disability now at issue, these deficits are deemed to be non-prejudicial to the claim. VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports have been associated with the claims file. No outstanding evidence has been identified that has not otherwise been obtained. The Veteran was most recently provided a VA examination for his left little finger in January 2011. The examiner obtained a thorough history, including reviewing the claims file, and provided detailed a physical examination. Thus, the Board finds that the January 2011 examination is adequate for determining the disability rating for the Veteran's service-connected ankylosis of the left little finger. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected left little finger disability since he was last examined. 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. A new VA examination is not necessary at this time. As noted above, the Board remanded the Veteran's claim of entitlement to an initial compensable rating for ankylosis of the left little finger to the Appeals Management Center (AMC) in November 2010 for further evidentiary development, including providing the Veteran with a new VA examination and readjudicating the claim. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC provided the Veteran with a new VA examination in January 2011 and readjudicated the claim in a January 2012 supplemental statement of the case. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. Some discussion of the Veteran's July 2010 personal hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the Veteran concerning his contentions regarding his left little finger symptoms. Notably, the Veteran's hearing testimony triggered the Board's decision to remand the claim for a new VA examination. 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 claim, 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. Merits of the Claim The Veteran's ankylosis of the left little finger has been assigned an initial noncompensable evaluation under Diagnostic Code 5227. He seeks a higher initial rating. 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 degrees of disability 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 (2013). 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 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2013). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5227, a zero percent evaluation is assigned for unfavorable or unfavorable ankylosis of the ring or little finger. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2013). Consideration must also be given to 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. 38 C.F.R. § 4.71a, Diagnostic Code 5227, Note (2013). Amputation of the little finger is evaluated under Diagnostic Code 5156. Under that diagnostic code, a 10 percent evaluation is assigned for amputation of the little finger of the major or minor hand without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. A 20 percent evaluation is assigned for amputation of the little finger of the major or minor hand with metacarpal resection (more than one-half of the bone lost). 38 C.F.R. § 4.71a, Diagnostic Code 5156 (2013). The Veteran was first examined in April 2006. He reported a past fracture at the PIP joint of the left little finger that required an open reduction. He complained of flexion deformity and deviation that interfered with his ability to write and to hold and fire weapons without pain or debilitation. However, he denied any difficulty functioning or performing daily activities, need for a splint or other device, or pain, fatigability, decreased endurance, incoordination, or flare ups. The examiner observed increased bony parameters on palpation of the left little finger PIP joint, a 40 degree palmar flexion deformity, a 15 degree medial deviation deformity of the PIP joint, and only modest grip strength. He recorded range of motion measurements of 90 degrees of flexion at the PIP joint and 40 degrees at the DIP joint. A left hand x-ray showed no acute fractures or dislocations, maintained joint spaces, no obvious bony changes, and a small exostosis along the ulnar aspect of the head of the 5th proximal phalanx. The examiner diagnosed the Veteran with status post fracture of the left little finger. The Veteran was next examined in October 2006. He denied experiencing any pain symptoms but did endorse functional impairment in writing, typing, cooking, shooting, playing, holding, washing, brushing teeth, and driving. The VA-QTC examiner observed that the Veteran could tie shoelaces, fasten buttons, and pick up and tear a piece of paper without difficulty. The left hand fingertips could approximate the proximal transverse crease of the palm and the measurement between the tip of the left thumb and little finger when attempting to oppose the fingers was 0 cm. Left hand strength was within normal limits. He recorded range of motion measurements for the left hand of 70 degrees of radial and palmar abduction of the thumb, 60 degrees of flexion at the MP and IP joint of the thumb, and 70 degrees of flexion at the DIP joint, 110 degrees at the PIP joint, and 90 degrees at the MP joint of the index finger, long finger, and ring finger. The left little finger PIP joint was in favorable ankylosis and demonstrated DIP flexion to 70 degrees and MP flexion to 90 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination on repetitive use. A November 2006 left hand x-ray showed no fracture, malalignment, or evidence of bony destructive processes. The examiner diagnosed the Veteran with status post left 5th finger fracture at PIP joint with the only objective finding being the ankylosed PIP joint at about 45 degrees. The Veteran was next examined for his left little finger disability in August 2009. At that time, he complained of squeezing, sharp, and cramping pain when writing or holding objects, radiating to the hand, which he rated as a 6 out of 10. The pain was exacerbated by physical activity and relieved with Motrin. With medication, the Veteran reported being able to function. His only reported functional impairments were in writing, lifting, and playing sports. The examiner observed that the Veteran could tie shoelaces, fasten buttons, and pick up and tear a piece of paper without difficulty. Left hand strength and left thumb to little finger opposition was normal. Ranges of motion of the left thumb, index finger, long finger, and ring finger were normal with no pain, fatigue, lack of endurance, or incoordination on repetitive use. The left little finger was ankylosed in a favorable position at the PIP and DIP joints. A left hand x-ray was within normal limits. The examiner diagnosed the Veteran with left little finger ankylosis and noted that there was no change in the Veteran's diagnosis. The Veteran was most recently examined for his left little finger ankylosis in January 2011 wherein he complained of pain in cold weather, stiffness, strain when writing for a period of time, inability to grip normally, and no instability. The examiner observed that the Veteran could make a tight fist with his left index and middle fingers, but had difficulty flexing the DIP joint of the left finger. The examiner concluded that his inability to actively flex the DIP joint of the left ring finger was likely secondary to an injury to the flexor profundus longus tendon sometime in the past. He did not indicate whether this was related to his service-connected left little finger disability. The examiner stated that the Veteran's left little finger was ankylosed in a non-ideal position, but that it could be more unfavorable. He concluded that the Veteran may be better off with an amputated left little finger as the contractures would likely interfere with activities requiring use of the finger such as gripping a football, using a computer, and sticking the finger into a small space such as a pocket. The VA/VA-QTC examination reports are the only medical evidence regarding the left little finger. The evidence, however, also includes lay statements and hearing testimony from the Veteran. Notably, his hearing testimony indicated that he had no remaining effective functioning in his left little finger and that he would be equally well served by amputation of the finger. At the outset the Board emphasizes that the noncompensable rating assigned for the Veteran's left little finger is maximum rating available under Diagnostic Code 5227 (ankylosis of the little finger) or Diagnostic Code 5230 (limitation of motion of the little finger). In this regard, the Court has determined that if, as here, a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are thereby not for consideration. However, while his currently assigned diagnostic code does not provide for a compensable evaluation for any ankylosis of the little finger, consideration has been given as to whether an evaluation under the rating criteria for amputation of the little finger is appropriate. The January 2011 VA examiner stated that the Veteran's left little finger may be equally well served by an amputation. Essentially, he indicated that the left little finger ankylosis at the PIP joint had the same effect of an amputation of the finger at that level. This is consistent with the Veteran's reports of his functional impairment. Under Diagnostic Code 5156, a 10 percent evaluation is warranted for amputation at the PIP joint or proximal thereto. Although the earlier VA examiners did not address whether the Veteran would be as well served by amputation of the left little finger at the PIP joint, the Board finds that the medical evidence does not show a specific onset of worsening symptoms to warrant the staging of this increased rating. Rather, the VA examiners indicated that the Veteran's left little finger disability was stable throughout the appeal period. As such, the Board finds that the increased initial rating of 10 percent is appropriate for the entire period on appeal. Although an increased initial rating of 10 percent is warranted for the Veteran's left little finger disability, the evidence does not support an even higher rating of 20 percent under Diagnostic Code 5156. Each of the VA examiners has noted the PIP joint as the point of disability and ankylosis for the Veteran's left little finger. There is no evidence of ankylosis or disability above that level or that the Veteran's left little finger has the effective functioning of an amputation with metacarpal resection and more than one-half of the bone lost to warrant an even higher initial rating of 20 percent. As such, the Board finds that an initial rating in excess of 10 percent is not warranted at any time during the appeals period. There is also no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45 (2013). Each of the VA examiners noted that repetitive use did not further diminish the Veteran's functioning. The Board has granted the Veteran an increased rating under the rating criteria for amputation, based on his reports of functional limitation. Indeed, the assignment of a higher rating based on finding that the Veteran's existing left finger disability is analogous to an amputation of the finger is essentially finding a total loss of function, i.e., a loss/amputation of the finger. The Board has reviewed the remaining diagnostic codes relating to little finger disabilities and finds that they are not applicable. There is no evidence of ankylosis of multiple digits. Although the January 2011 VA examiner noted that the Veteran had limitation of motion in his left ring finger, it is not clear that this is due to his service-connected left little finger disability. Further, even if the Board were to accept that this limitation of motion of the left ring finger was due to the left little finger disability and therefore warranted consideration of a separate evaluation under Diagnostic Code 5227, any limitation of motion of the ring finger is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5230. There is likewise no evidence that the left little finger disability results in any loss of use of the hand. As such, an increased rating cannot be assigned under Diagnostic Codes 5220-5230. 38 C.F.R. § 4.71a, Diagnostic Codes 5220-5230 (2013). The claims file includes statements from the Veteran, reiterating his complaints of left little finger pain and functional impairment. These complaints are consistent with those reported to the VA/VA-QTC examiners. Indeed, the Veteran is competent to report symptoms of his left little finger disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is also deemed credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected left little finger disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 10 percent disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Fenderson, supra. For all the foregoing reasons, the Board finds that a rating of 10 percent, but no higher, under Diagnostic Code 5156 for the Veteran's service-connected left little finger is appropriate for the entire period of the appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability rating specifically contemplate his complaints of functional impairment. Notably, although the Veteran's originally assigned Diagnostic Code 5227 did not provide for a compensable evaluation for ankylosis of the left little finger, the rating criteria required the consideration of an evaluation under the rating criteria for amputation. This consideration led to the Board's grant an initial 10 percent rating. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. Referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. Notably, the January 2011 VA examiner indicated that the Veteran was self-employed as a consultant. The question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a disability rating of 10 percent for ankylosis of the left little finger, evaluated as amputated, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs