Citation Nr: 1330588 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-01 434 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to a compensable rating for the residuals of a fractured right ring finger. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1942 to October 1945. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's residuals of a right ring finger fracture consist, primarily, of objective evidence of painful motion, incoordination, and weakened movement. CONCLUSION OF LAW The criteria for a 10 percent rating have been met for the residuals of a fractured right ring finger. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5230 (2013) REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to a compensable rating for the residuals of a fractured right ring finger. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In March 2010, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the Veteran, and notice of the evidence VA would attempt to obtain. VA informed the Veteran that in order to establish an increased rating for his service-connected disability, the evidence had to show that such disability had worsened and the manner in which such worsening had affected his employment and daily life. 38 U.S.C.A. § 5103(a). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the following relevant evidence: records reflecting his VA treatment from November 2008 to November 2010 and records reflecting his treatment from January 2010 to March 2012 at Owensboro Dermatology Associates. In April 2010 and November 2012, VA examined the Veteran to determine the extent of impairment due to his service-connected residuals of a fractured right ring finger. While the claims file was not present, that was not prejudicial to the Veteran. The VA examiners conducted extensive evaluations, in which they interviewed and examined the Veteran, documented his current medical conditions, considered the impact of the Veteran's right ring finger disorder on his daily activities, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In August 2013, VA scheduled the Veteran for a video conference with a Veterans Law Judge from the Board. However, he withdrew his request for a hearing before the Board and has not requested that it be rescheduled. Therefore, the Board will proceed as if the Veteran no longer desires a hearing. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Degenerative arthritis, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A noncompensable rating is warranted for limitation of motion of the ring finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. When, as here, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, a rating of 10 percent is for application 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, a 10 percent rating is warranted when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. a 20 percent rating is warranted when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. For the purpose of rating disability from arthritis, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45 (f). When an evaluation of a disability is based on limitation of motion, the Board must consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Generally, the relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed (in this case, March 2009) until VA makes a final decision on the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2013). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A review of the evidence, such as the reports of the April 2010 and November 2012 VA examinations, discloses that the Veteran's service-connected residuals of a fractured right ring finger are manifested primarily by objective evidence of painful motion such as wincing and other facial expressions and limitation of extension. He also demonstrates incoordination and weakened movement. The records from Owensboro Dermatology Associates show that in July 2010, the Veteran had surgery on the hand, however, that was done to ameliorate the effects of squamous cell carcinoma rather than the residuals of a fractured right ring finger. While limitation of motion of the ring finger warrants a noncompensable rating under 38 C.F.R. § 4.71(a), Diagnostic Code 5230, the intent of the rating schedule is to recognize actually painful joints as productive of disability. 38 C.F.R. § 4.59. In this regard, the Veteran has consistently stated that the hand is stiff and has limited ability to grip. This reportedly causes difficulty with his ordinary activities of daily life, such as buttoning his shirt, using utensils to eat, and gripping small objects in general. In addition, he states that he cannot drive very far before his hand begins to ache. The most recent VA examiner states that his right ring finger disorder is productive of a moderate effect on his ability to do chores, shop, or travel, or participate in recreation and a mild effect on his ability to dress and feed himself. Such actually painful joints are entitled to at least the minimum compensable rating. In this case, the minimal compensable evaluation under Diagnostic Code 5003 is 10 percent. Therefore, the Board finds that a schedular 10 percent rating is warranted for the residuals of his fractured right ring finger. In arriving at this decision, the Board has considered the possibility of a still higher schedular evaluation. Such evaluations would be based, primarily, on amputation or the finger or the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), Diagnostic Codes 5003 and 5155. In this case, the Veteran's residuals of a fractured right ring finger affect only one minor joint group, and the right ring finger has not been amputated. Moreover, he does not demonstrate ankylosis of the finger, excess fatigability, swelling, or atrophy of disuse. Therefore, he does not meet the schedular criteria for a rating in excess of 10 percent. However, that does not end the inquiry. The Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected residuals of a fractured right ring finger. 38 C.F.R. § 3.321(b)(1) (2013). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, 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, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria for rating a the residuals of a fractured right ring finger contemplate the symptoms limitation of motion and pain, as well as weakness and incoordination and the effects on the Veteran's activities of daily living. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. In short, the Veteran does not have symptoms associated with his residuals of a fractured right ring finger that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is therefore against a finding that that disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). Finally, the Board has considered the representative's contentions with due process deficiencies committed by VA. In its April 2010 rating decision, the RO increased the Veteran's rating for lumbosacral strain from 20 percent to 40 percent, effective March 22, 2010. The RO reduced the Veteran's rating for the residuals of a fractured right ring finger from 20 percent to noncompensable. Then, as now, those were the only two disabilities for which service connection had been established. The Veteran's combined disability rating remained at 40 percent before and after the April 2010 rating action. The Veteran's representative notes that in an October 2008 rating action the RO had raised the Veteran's rating from noncompensable to 20 percent, effective April 14, 2008. He states that such action was based primarily on the findings in a July 2008 VA examination. He notes that in its April 2010 rating action, when the RO reduced that rating back to noncompensable, effective March 22, 2010, it did so primarily on the basis of the findings on an April 2010 VA examination. The representative maintains that those findings on the two examinations were similar and therefore, not sufficient to reduce the rating. He contends that the RO's April 2010 rating decision was tantamount to find the July 2008 rating action clearly and unmistakably erroneous. The representative states that the RO is not permitted to view nearly identical medical reports and simply arrive at a different conclusion. In this regard, the representative notes that previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). The Board finds the representative's contentions misplaced. While he is correct that the RO's July 2008 rating action was final in that it was not appealed by the Veteran, VA is not seeking to reverse that decision. The 20 percent rating in effect from April 14, 2008 through March 21, 2010 remained in effect, and the Veteran was compensated accordingly. However, when the Veteran filed a claim for an increase in March 2010, VA was obligated to determine the manifestations of the Veteran's right ring finger disorder at that time and to consider the rating anew. As noted in the discussion above, the most recent manifestations of the Veteran's right ring finger disorder as noted on two VA examinations most nearly reflect the criteria for a 10 percent rating under the applicable rating criteria. The Veteran's representative further contends that the RO erred when it reduced the Veteran's rating for the residuals of a fractured right ring finger, because it did not notify the Veteran that it was proposing to make such a reduction or give him an opportunity to present evidence as to why such reduction should be effected. Generally, where the reduction in the evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made (emphasis added), a rating proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary (in this case, the Veteran) would be notified of the contemplated action and furnished detailed reasons therefor. He or she would also be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, the final rating action would be taken. 38 C.F.R. § 3.105(g) (2013). While the Board recognizes the due process requirements attendant to rating reductions, they are not applicable in this case. As the representative notes, the RO's April 2010 rating actions did not result in any reduction in the Veteran's combined compensation rating of 40 percent. The combined 40 percent rating remained consistent before and after March 22, 2010. Therefore, the RO did not need carry out the procedural requirements of notifying the Veteran and giving him an opportunity to respond. Accordingly, the Board finds the representative's contentions without merit. Finally, the representative states that the Veteran should have been afforded an opportunity to rebut the decrease in the rating for his right ring finger disorder. In fact, the Veteran the reduction in the rating for his right ring finger is the subject of this appeal. The representative notes that had the 20 percent rating remained in effect, the Veteran would now be entitled to a 50 percent combined rating. Coincidentally, the Board's action above will result in such a combined rating. ORDER Entitlement to a 10 percent rating is granted for the residuals of a fractured right ring finger. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs