Citation Nr: 1330608 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 13-02 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an increased evaluation for a fracture of the first metacarpal of the right thumb, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from February 1953 until April 1956. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. FINDING OF FACT The Veteran's fracture of the first metacarpal of the right thumb does not manifest with a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for the fracture of the first metacarpal of the right thumb have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5003, 5228 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2011, which fully addressed all notice elements. This letter advised the Veteran of the types of evidence demonstrating a worsening or increase in severity was needed to substantiate his claim, the division of responsibility between the Veteran and VA for obtaining the required evidence, and how the disability ratings and effective dates are assigned. VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, private medical records, VA outpatient treatment records, lay statements and the reports of a VA examination. The Board notes that during a March 2011 VA outpatient treatment visit the Veteran indicated "he feels he will" proceed with surgery with Dr. O. During the April 2011 VA examination, however, while the Veteran again mentioned the possibility of surgery, he noted that he had until August 2011 to decide. In light of this, the RO requested treatment records from Dr. O. in May 2011 and sent a follow up request in June 2011. These records were received at the RO in August 2011 and reflect that Dr. O discussed options, including excisional arthroplasty and continuing cortisone injections, with the Veteran. Dr. O. did not favor arthrodesis. Dr. O's records did not indicate any further plan of treatment or note any scheduled surgery. Significantly, the Veteran and his representative have never affirmatively indicated the Veteran proceeded with the surgery. As the evidence only mentions the possibility of future surgery, the Board finds a remand solely to search for these records is not necessary. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly support a claim); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Additionally, during the June 2013 Board hearing, the Veteran testified that he received injections to the thumb at VA the day before. This June 2013 VA treatment record is not currently associated with the claims file; however, the Board recognizes that VA has constructive knowledge of records that were clearly generated by VA. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board carefully considered remanding the claim to ensure the file was complete; however, in this case, the Board has VA outpatient treatment records, including several records where the Veteran received injections to the thumb. As such, the Board finds that a remand to obtain the most recent record that will be similar in nature to those already of record would only result in a delay in adjudication of the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). During the June 2013 Board hearing, the undersigned Veterans Law Judge clearly set forth the issue to be discussed and elicited further information as to the functional limitations of the right thumb. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Additionally, the April 2011 VA examination obtained in this case is adequate, as it is predicated on a review of the Veteran's medical history, contain a description of the history of the disability at issue, document and consider the Veteran's complaints and symptoms, and fully provide medical evidence that is relevant to the governing rating criteria. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks an increased evaluation for the service-connected fracture of the first metacarpal of the right thumb. By way of history, service connection for the right thumb was initially granted in a December 1956 rating decision. At that time a noncompensable evaluation was assigned. A May 1967 rating decision granted an increased 10 percent evaluation under Diagnostic Codes 5010-5003. The 10 percent evaluation has continued since that time. The Veteran argues the current 10 percent evaluation does not accurately reflect the severity of his disability. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has also held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's fracture of the first metacarpal has been evaluated under Diagnostic Code 5010-5003. Diagnostic Code 5010 mandates the claim be evaluated as degenerative arthritis. Diagnostic Code 5003, in turn, evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes, in this case Diagnostic Code 5228. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. Diagnostic Code 5228 applies to limitation of motion of the thumb and assigns a 10 percent rating evaluation for a gap of one to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating evaluation is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. All other compensable ratings under the Diagnostic Codes related to the hands and fingers require ankylosis of individual or multiple digits. The evidence for consideration in this case includes VA outpatient treatment records, private medical records, VA examination reports, and lay testimony and statements. As this is an increased rating claim, the increase could potentially be as early as 1 year prior to the date of the claim. As such the Board has considered findings for the period beginning on February 2010. see 38 C.F.R. § 3.400 (o)(2). VA outpatient treatment records reflect treatment for pain of the right thumb, including corticosteroid injections to the joint. The records note complaints of marked pain and tenderness of the thumb. A November 2010 record noted slight subluxation of the metacarpal phalangeal and carpal metacarpal joints of the right hand. None of the VA outpatient treatment records reflect findings concerning the range of motion of the thumb. The Veteran was afforded a VA examination in April 2011. The examiner noted that both the treating physician and a hand specialist recommended surgery. The Veteran indicated he would go with the private physician for a possible surgery but indicated he had until August 2011 to decide. He denied prior surgeries or hospitalization for the right hand. He described past cortisone injections. He described daily aching or nagging sensation of the right metacarpal phalangeal joint and daily edema. He indicated he used his splint 3-4 times a month to immobilize the right thumb. Pain was aggravated with motion of the thumb, gripping and writing. He treated with over the counter medication and sometimes with ice or the splint. The condition affected his ability to perform minor activities such as lifting, dressing, housework and gripping. He did not do recreational activities. Clinical examination reflected edema to the right metacarpal phalangeal region. There was no tenderness with palpation of the metacarpal phalangeal joint or thumb but the examiner also noted that he palpated the area lightly due to documented severe degenerative joint disease. Grip strength was decreased because the Veteran did not use the thumb while gripping. He was able to oppose each finger to the thumb but did not really move the thumb in order to oppose. When trying to adduct the thumb and touch the base of the fifth finger there was a 1 centimeter gap. He could pick up a pen and paper clip with the thumb and index finger but reported when he wrote or applied pressure it caused significant pain. Sensation to the thumb was intact. Extension of the thumb was normal at 0 degrees and flexion was to 45 degrees. The measurements were the same pre and post exercise with passive motion being the same. There was no evidence of and no suspected additional functional loss due to pain, weakness, incoordination, fatigability, lack of endurance, flare-up. The Veteran submitted a March 2011 treatment record from J.D.O., M.D. Dr. O. indicated the Veteran had bilateral thumb pain and had progressive difficulty with pain in both hands over the last 10 years. The Veteran described a past fracture at the base of the right thumb that had been intermittently bothersome. Treatment consisted of multiple injections and the treating physician discussed possibility of surgery. Pain was exacerbated by activities such as pinching and forceful gripping. Clinical examination reflected a deformity of the metacarpal base of the right thumb, with some mild instability. The right thumb metacarpal phalangeal joint was in a hyperextensive stance and finger motion was full. Thumb motion lacked 2 centimeters full flexion to the fifth metacarpal head bilateral. Grip was weaker on the right. VA x-rays were reviewed and demonstrated degenerative changes of the base of the thumbs and a deformity consistent with an old fracture at the base of the right metacarpal. There was joint space narrowing and sclerosis at that point with hyperextension of the metacarpal phalangeal joint consistent with posttraumatic arthritis of the right thumb. The physician discussed the pathophysiology, including anatomic drawing, and treatment options which included excisional arthroplasty, arthrodesis or continued cortisone injections. The Veteran also presented testimony at a June 2013 Board hearing. The Veteran testified that the thumb affected gripping, dressing, and anything that requires pressure, such as twisting or turning a top off of a jar. He explained there was swelling and pain. He testified that he used the brace overnight and that prevented pain as the joint was at rest in one position; however, when he took the brace off and used the thumb then there was pain. He indicated he had to give up golf because of the pain. The Veteran admitted that he would be less functional if the joint was amputated but explained the pain and weakness in the thumb prevented him from doing activities. The undersigned Veterans Law Judge noted that the Veteran generally held the thumb in a protective position but was able to move the thumb and the Veteran testified that he did retain movement of the thumb. Evaluating the evidence in light of the rating criteria outlined above reflects that an increased evaluation is not warranted. In this case, the VA examination reflects the Veteran had did not have a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In fact, the April 2011 VA examination indicated the Veteran was able to oppose each finger to the thumb. The Veteran's representative pointed out that the Veteran brought the fingers toward the thumb instead of bringing the thumb toward the fingers. While the April 2011 VA examiner did note this when discussing opposition of the fingers to the thumb, the examiner also measured adduction of the thumb and found only a 1 centimeter gap. See Dorland's Illustrated Medical Dictionary 26 (30th ed. 2003) (defining adduct as to draw toward the median plane or toward the axial line of a limb). In other words, although the Veteran generally protects the thumb, he retained some ability to draw the thumb toward the fingers. Furthermore, the private physician indicated that thumb motion lacked only 2 centimeters flexion to the fifth metacarpal head. The evidence reflects that the Veteran has complained of pain and limitation of motion associated with his right thumb and has described restriction on activities, including gripping, dressing and as a result of the disability. The records indicate the Veteran has been treated with a brace, ice, over-the-counter medication and cortisone injections to the joint. However, the April 2011 VA examiner considered the effects of painful motion, repetitive motion, and flare-ups and specifically found that there was no objective evidence of additional functional loss from pain, repetition, fatigability, incoordination, lack of endurance or flare-ups. Furthermore, while the Veteran testified that his thumb limited activities, he clearly noted that he retained motion of the thumb and the April 2011 VA examiner described the ability to oppose the fingers to thumb, ability to adduct with only 1 centimeter of a gap and normal extension and 45 degrees of flexion. In other words, even considering all of the limitations the Veteran described, the Veteran's thumb does not more nearly approximate a finding of limited motion resulting in a gap of more than 2 inches between the thumb and fingers. Without any evidence of functional loss, an increased evaluation based solely on pain is not warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5228; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As the Veteran's range of motion exceeds that of a gap of 1-2 inches (2.5-5.1 centimeters) required for a 10 percent evaluation under Diagnostic Code 5228, the Board considered whether a higher evaluation was warranted under Diagnostic Code 5003. A higher rating under this Diagnostic Code requires x-ray evidence or involvement of 2 or more major or minor joint groups with occasional incapacitating episodes. In the present case, while the Veteran has x-ray evidence of degenerative changes of the thumb, this constitutes only 1 minor joint group. See 38 C.F.R. § 4.45(f) (explaining that multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered minor joints). As such, an increased evaluation under Diagnostic Code 5003 is not warranted. The Board also considered whether an increased evaluation was warranted under any other Diagnostic Codes pertaining to the right hand. As noted above, however, the other Diagnostic Codes require some form of ankylosis of the thumb or fingers. As the Veteran retains some motion of the thumb, higher evaluations under these Diagnostic Codes are not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5224; see 38 C.F.R. § 4.71a, Evaluation of ankylosis or limitation of motion of single or multiple digits of the hand, Note 4 (explaining that ankylosis of the thumb will involve the carpometacarpal and/or the interphalangeal joint being ankylosed). Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether staged ratings are appropriate. In the present case, the Veteran's symptoms have been relatively constant throughout the appeal period. Therefore, the preponderance of the evidence is against the Veteran's claim, and an increased evaluation is not warranted. 38 C.F.R. § 4.3. Extraschedular Rating The Board has also considered whether the Veteran's fracture of the right thumb warrants referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In this case, the Veteran's symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran has reported pain, limited motion, and swelling. Limited motion of the thumb is expressly contemplated by the schedular criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5228. Diagnostic Code 5003 expressly contemplates limitation of motion as confirmed by findings including swelling and pain. Additionally, the regulations and caselaw also mandate consideration of painful motion, and the effects of repetitive motion, weakness, fatigability, swelling, and atrophy. 38 C.F.R. § 4.40, 4.41, 4.44, 4.45, 4.46, and 4.59. Therefore, the Veteran has not provided evidence of any symptoms that are not expressly contemplated by the rating criteria. In other words, Diagnostic Code 5228 adequately contemplates all of the Veteran's symptoms. Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted. ORDER An evaluation in excess of 10 percent for a fracture of the first metacarpal of the right thumb is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs