Citation Nr: 1330843	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  07-22 663	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a compensable disability rating for residuals of a right index finger dislocation.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel



INTRODUCTION

The Veteran had active service from October 1995 to October 1998 and from December 1999 to October 2004.  He was honorably discharged from his first period of service and was discharged Under Other than Honorable Conditions from his second period of active service.  In December 2005, VA determined that the Veteran's discharge from his second period of service was Under Honorable Conditions for VA purposes. 

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In December 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the RO/AMC schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected residuals of a right index finger dislocation.  This examination occurred in June 2011 and an addendum to this report was obtained in January 2012.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  

The record in this case indicates that the Veteran reported that he had not worked a full-time job since 2006 but was employed part-time as a stock clerk and as a work-study student.  A June 2011 VA examination report indicates that the Veteran also reported that he had no difficulty with any prior job due to his service-connected right index finger disability.  Accordingly, the Board finds that a TDIU claim is not reasonably raised by the record in this case.  Id.


FINDING OF FACT

The record evidence shows that the Veteran's service-connected residuals of a right index finger dislocation consist of limitation of motion with a gap of 1 centimeter (cm) between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, with subjective complaints of pain and stiffness; there is no evidence of ankylosis or amputation.


CONCLUSION OF LAW

The criteria for a compensable rating for residuals of a right index finger dislocation have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.68, 4.71, 4.71a, Diagnostic Code (DC) 5229 (2012).
 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R.                 § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id. 

A February 2005 pre-rating letter provided pertinent notice to the Veteran in connection with his claim for an increased rating.  That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA.  A March 2006 pre-rating letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. 

In a claim for an increased rating, 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). 

The pre-rating February 2005 and March 2006 letters notified the Veteran that medical or lay evidence could be submitted to substantiate his claim for an increased rating and provided specific examples.  These letters stated that such evidence should discuss his disability symptoms from people who have witnessed how they affected him as well as notifying him that he may submit statements from his employers.  The remaining elements of Vazquez notice were satisfied by a June 2008 letter.  The timing deficiency with regard to this June 2008 letter was cured by the readjudication of the claim in the July 2008 and October 2012 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  The Veteran also has not alleged prejudice with regard to any notice deficiency.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful).

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records and the reports of VA examinations.  In July 2012, the Veteran reported that he did not receive Social Security Administration benefits.   Finally, there are various written statements provided by the Veteran and his representative.  

The Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided.  Nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error).  In summary, the duties imposed by the VCAA have been considered and satisfied.

Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings.  The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history.  38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The Veteran's service-connected residuals of a right index finger dislocation have been evaluated under 38 C.F.R. § 4.71a, DC 5229, for limitation of motion of the index or long finger.  A 10 percent rating (for major and minor extremity) is assigned for limitation of motion of the index or long finger, with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with finger flexed to the extent possible, or; with extension limited by more than 30 degrees.  38 C.F.R. § 4.71a, DC 5229. 

The diagnostic codes pertaining to ankylosis or limitation of motion of single or multiple digits of the hand are found in 38 C.F.R. § 4.71a, DC's 5216 to 5230.  The preamble to 38 C.F.R. § 4.71a, DC's 5216 to 5230 provides, in relevant part, that:

For the long, ring, and little fingers (digits III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand.  The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads.  Only joints in these positions are considered to be in favorable position.  For digits II through V, the metacarpophalangeal (MP) joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal (PIP) joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion.  See 38 C.F.R. § 4.71a, Table "Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand."

The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.   See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.   Johnson v. Brown, 9 Vet. App. 7 (1996).
The rating schedule authorizes the assignment of a zero percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met.  38 C.F.R. § 4.31. 

A March 2005 VA examination report reflected the Veteran's complaints that his right hand "bothered" him in cold weather, that his grip was not as strong on the right as he did not have full range of motion and finger stiffness.  Physical examination showed decreased grip strength secondary to limited range of motion of the index finger.  Range of motion in the right MP joint was "equal" at 75 degrees, DIP joint was to 50 degrees and PIP joints was to 90 degrees.  There was no additional loss of motion during repetitive testing.  While making a fist, he was noted to be able to touch the pads of the last three fingers but that the index fingernail remained visible.  He was noted to also be able to touch his thumb to the base of his fifth digit bilaterally and was able to touch all four fingertips with this thumb easily bilaterally.  

A June 2011 VA examination report reflected the Veteran's complaints of daily finger pain, particularly in cold weather, and he had difficulty with prolonged writing, yard work and with grabbing objects.  Other symptoms included stiffness and swelling.  He used Motrin to treat his pain.  Physical examination found normal positioning of the hand and fingers as compared to the left as well as mild painful motion to the right index PIP flexion past 90 degrees.  There was a gap of one cm with opposition of the index finger to the proximal palmar crease with the finger flexed to its full ability.  Swelling, instability, nodules, ankylosis or gap with opposition of the thumb to the fingers were not found.  Range of motion of the right index finger was 90 degrees for MCP flexion, 100 degrees at PIP flexion, 20 degrees at PIP extension and 70 degrees at DIP flexion; repeat range of motion testing revealed no additional loss of range of motion.  Mild decrease in grip strength due to mild decrease in right index finger PIP flexion was found.  An accompanying hand X-ray was found to be normal.

In a January 2012 addendum to the June 2011 VA examination report, the examiner opined that she had reviewed the March 2005 VA examination report and was unable to state whether extension was limited by no more than 30 degrees as there was no mention of extension in the report.  There was no other information in the report to allow deduction of what the extension measurement at that time would have been in the examiner's opinion.  It was the examiner's opinion that it was unlikely that there was more than a 2.5 cm gap between the fingertip and the proximal transverse crease of the palm of the hand, with the index finger flexed to the extension possible, as PIP joint flexion at the index finger was 90 degrees and right DIP and MCP flexion were normal.  The examiner further noted that she had found a one cm gap between the index finger and the proximal transverse crease of the palm of the hand, with index finger flexed to the extent possible, and that such findings were consistent with the previous examiner's description. 

Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claim for a compensable disability rating for his service-connected residuals of a right index finger dislocation.  In this case, the June 2011 VA examination report clearly reflects a gap of one cm between the fingertips and the proximal transverse crease of the palm and that extension was limited by more than 30 degrees.  While the March 2005 VA examiner did not make a specific finding as to such a limitation of motion, the June 2011 VA examiner opined that the findings that were reported by the March 2005 VA examiner (namely that the Veteran was able to touch the pads of the last three fingers but that the index fingernail remained visible) were consistent with her examinations findings and suggested a one cm gap.  Moreover, to the extent that pain was reported by the Veteran after repetitive motion at his VA examinations, the VA examiners noted that the Veteran did not demonstrate any further loss of motion or function due to such symptoms.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7.  Such findings do not warrant a minimum compensable 10 percent rating, which also is the highest rating available under DC 5229.  38 C.F.R. § 4.71, 5229.

The Board also has considered whether there is any basis for assignment of a compensable rating for residuals of an injury to the right index finger under other potentially relevant diagnostic codes.  In the absence of any ankylosis of right hand joints or other deformity, however, the Board finds that evaluation of the right index finger disability under any other DC pertaining to musculoskeletal disability of the digits of the hand is not appropriate.  See 38 C.F.R. § 4.71a, DC's 5216 to 5229. 

In evaluating the Veteran's residuals of a right index finger dislocation, the Board has considered the Veteran's assertions regarding his symptoms.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Generally, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  In this regard, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which do not support assigning a compensable disability rating for his service-connected residuals of a right index finger dislocation (as discussed above). 

Extraschedular

The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected residuals of a right index finger dislocation.  38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).  

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R.     § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996).  Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R.      § 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  See Thun, 22 Vet. App. at 111.

In this case, the Board finds that the applicable schedular criteria are adequate to rate the residuals of a right index finger dislocation at all points pertinent to this appeal.  The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R.                  § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a compensable disability rating for residuals of a right index finger dislocation is denied.



____________________________________________
MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs