Citation Nr: 1332342 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 12-10 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable rating for the residuals of a fracture of the 4th metacarpal, right hand (claimed as benign growth of the bones of the right hand). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from January 1976 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The claim on appeal is accurately set forth as listed on the title page of this decision. The Veteran submitted a claim in February 2011, but was notified in March 2011 that the claim form could not be located. The RO interpreted the Veteran's claim as a claim "for a benign growth of the bones, right hand." See April 2011 notice letter. The July 2011 rating decision characterized the claim as a claim for an increased evaluation for the service-connected 4th metacarpal fracture, claimed as a benign growth. The Veteran contacted the RO to file a "separate claim" to "reopen" the claim for a fractured 4th finger. The Veteran submitted additional correspondence disagreeing with the "denial" of service connection for a 4th finger fracture, right hand. The Veteran's testimony at his November 2012 videoconference hearing clarifies that he is seeking an increased (compensable) evaluation for the service-connected right 4th metacarpal fracture, and that no other claim is before the Board on appeal at this time. The Veteran requested a hearing before the Board by videoconference. The requested hearing was conducted by the undersigned in November 2012. A transcript is electronically associated with the claims files. The Veteran's representative noted during the November 2012 hearing that the Veteran requested a waiver of review of that evidence by the agency of original jurisdiction (AOJ). VA regulations require that pertinent evidence submitted by an appellant must be referred to the AOJ for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2013). The Veteran provided waiver of review by the AOJ at his hearing. Appellate review may proceed. 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 4th metacarpal fracture residuals are manifested by credible complaints of pain without limitation of motion, but with mild post-traumatic neuropathy. CONCLUSION OF LAW The criteria for a compensable, 10 percent, disability rating for the service-connected residuals of a fracture of the 4th metacarpal, right hand, but no higher schedular evaluation, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5155, 5227, 5230, 38 C.F.R. § 4.124a, Diagnostic Codes 8516, 8616, 8617 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and 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). 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, following the Veteran's April 2008 claim for an increased rating, a letter was issued which included notice of each element of the claim for an increased rating, including notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). In this case, the Veteran's service treatment records (STRs) were of record prior to the claim for an increased rating. VA treatment records have been obtained. The Veteran was afforded an opportunity to identify non-VA treatment, and the identified records were requested. Lengthy records from the Social Security Administration (SSA) have been associated with the claims files. The Virtual VA electronic information database has been reviewed. Following his 2008 claim for an increased rating, the Veteran was afforded a VA examination in May 2008. The Veteran was notified, after he inquired as to the status of his claim in 2011, that no documents could be located which were dated after the December 2008 rating decision was issued. The Veteran was afforded another opportunity to disagree with the December 2008 rating decision, and was afforded another VA examination. After the most recent VA compensation examinations were conducted, in April and May 2011, the Veteran testified at a hearing before the Board conducted in November 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report of VA examination, considered in light of the lengthy records of VA treatment rendered since the examination, is more than adequate upon which to base a decision with regard to the Veteran's claim. See 38 C.F.R. § 3.327(a) (2013); Caffrey v. Brown, 6 Vet. App. 377 (1994). There is sufficient evidence on file to assess the severity of the service-connected disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that an individual who chairs a Veteran's hearing before the Board to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the issue on appeal was correctly identified, and the Veteran's testimony as to symptoms of his right hand disability and industrial impairment he attributed to the disability was elicited at the hearing. See Transcript, November 2012 hearing. The duties under 38 C.F.R. § 3.103 have been met. The VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claim addressed on the merits with no additional assistance or notification required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Increased Rating for Residuals, Fracture, Right 4th Metacarpal Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable, 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. A claimant 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). 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5230, a noncompensable rating is warranted for any limitation of motion of the ring or little finger on the major or minor hand. Id. There is no higher disability evaluation available under Diagnostic Code 5230. Id. Under Diagnostic Code 5227, a noncompensable rating is warranted for unfavorable or favorable ankylosis of the ring or little finger on the major or minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227. There is no higher disability evaluation available under Diagnostic Code 5227. Id. However, a note to DC 5227 states that ratings must also address 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. A compensable rating for a fourth finger disability requires amputation or extremely unfavorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5155, 5216. A 10 percent evaluation is warranted for amputation of the ring finger on the major or minor hand, without metacarpal resection, at the proximal interphalangeal (PIP) joint or proximal thereto. 38 C.F.R. § 4.71a, Diagnostic Code 5155. If there is metacarpal resection, a 20 percent evaluation is assigned. In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a, Diagnostic Code 5216, which provides rating criteria for unfavorable ankylosis of five digits of one hand. In order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and PIP joints either in extension or full flexion or with rotation or angulation of a bone. Id.; see also Note (3)(ii), (iii). Facts and Analysis The Veteran was treated for a right 4th metacarpal fracture in service. He was granted service connection for the residuals of a right 4th metacarpal fracture soon after his 1978 service discharge, by a rating decision issued in 1979. The Veteran's 4th metacarpal disability has been evaluated as noncompensable since that time. The noncompensable evaluation was initially assigned under 38 C.F.R. § DC 5015, which provides criteria for evaluating benign growths. By a 2011 rating decision, issued during the course of this appeal, the RO assigned the disability rating under DC 5230, which provides criteria for evaluating limitation of motion of the little or ring finger. VA examination during the period from 1979 through 1995 disclosed shortening of the right 4th metacarpal bone. In 1999 and through August 2000, when he was working, the Veteran sought VA treatment several times for complaint of pain in the right hand with use of the 4th digit. He was issued an ulnar gutter splint, which splinted fingers 4 and 5, leaving fingers 1 through 3 free. Additionally, a wrist cock-up splint was issued for work duties which could not be performed while the ulnar gutter splint was on. The Veteran wore out the splints and new ones were issued in March 2000. The Veteran continued to seek treatment of the right hand through August 2000. On VA examination in May 2008, the Veteran reported pain in the right hand with use of the right 4th finger. He used a splint to relieve pain. The examiner found no abnormality of the right 4th finger on objective examination or on radiologic examination. The Veteran sought evaluation for increased right hand pain in April 2011. At that time, the Veteran stated that he noticed right hand pain since he achieved sobriety. The Veteran's pain medication was changed and he was provided a new splint. An April 2011 VA examination reflects that the Veteran used Meloxicam for right hand pain. Upon physical examination, there was pain over the right 4th metacarpal on palpation, but found no other abnormality. The report of examination conducted in May 2011 states that the Veteran had decreased strength and dexterity in the right hand. The examiner stated that the 4th knuckle was flattened compared to the other knuckles. The Veteran had essentially normal range of motion of each finger, with ability to oppose each finger to the thumb and to the transverse crease of the palm. His right hand, fingers, and wrist were diffusely tender. The examiner found no pain on motion of the 4th finger. The examiner concluded that the Veteran's pain was more consistent with his arthritis, which was shown on radiologic examination as present in the MCP joint of the thumb and the PIP joint of the second finger than with the remote fracture of the 4th finger. At his November 2012 videoconference hearing, the Veteran testified that he had sharp pain in the right hand, and other times had chronic pain or spasm pain. The Veteran testified that he had swelling of the deformed joint at times, that it hurt to grip or hold anything heavier than a jug of milk in the right hand. He reported numbness at times, especially if there was swelling. At his hearing, the Veteran testified that he had recently received additional VA treatment. October 2012 VA treatment records (added to the claims file after the videoconference hearing), reflect that the Veteran again reported that he had radiating pain in the right wrist and hand. He had tenderness on movement. There were fasciculations in the interosseus muscles between the 1st and 2nd metacarpals. The provider changed the Veteran's medication and referred the Veteran for neurology evaluation. The provider suspected possible post-traumatic neuropathy or RSD (reflex sympathetic dystrophy). The evidence as a whole establishes that the Veteran has objective evidence of the residuals of a 4th metacarpal fracture of the right hand, including shortening of the bone. The evidence as a whole establishes that the Veteran does have symptoms, termed fasciculation, in the right hand that a lay person could describe as cramping. For purposes of information, the Board notes that fasciculation may be defined as involuntary twitching of a group of muscle fibers. Stedman's Medical Dictionary 650 (27th ed. 2000). The evidence of record shows that the Veteran does not have any ankylosis, or any loss of motion, of the right 4th finger. Nevertheless, he had decreased strength and dexterity. He uses a splint to reduce pain resulting from use of the right hand. Some providers have, prior to this appeal, attributed the Veteran's right hand pain to arthritis of other digits rather than to the Veteran's 4th metacarpal fracture residuals. However, the Board notes that the Veteran has consistently described pain in the right hand radiating to the right wrist and has used a splint to relieve pain for many years, before arthritis was diagnosed in any digit. The Veteran has consistently stated that he has switched from the right hand to the left hand for many tasks, because it is painful to use the right hand. The Board also notes that some of the examination reports have indicated that the Veteran's right 4th finger was normal on physical examination, although the Veteran's right 4th knuckle has a different appearance than the other knuckles on the right hand. Therefore, the Board finds the October 2012 diagnosis of post-traumatic neuropathy or other post-traumatic disorder of the right hand is more persuasive than the reports stating that there are no objective residuals of the 4th right metacarpal other than pain on palpation. The Note following DC 5227 states that evaluation as amputation must be considered, or an "additional evaluation" if there is "interference with overall function of the hand" where there is noncompensable favorable or unfavorable ankylosis of the ring or little finger. In this case, amputation of the ring finger at the metacarpal joint, without resection, would be rated as 10 percent disabling, under DC 5155. No higher rating is provided under DC 5155. The interference with the Veteran's function of the right hand could also be rated as partial incomplete paralysis or neuritis or neuralgia of the ulnar nerve, which control flexion of the 4th and 5th finger, as set forth in DC 8516. Evaluation under 38 C.F.R. § 4.124a, DC 8516, would result in a compensable, 10 percent evaluation, but no higher rating. The Board finds that a 10 percent rating, based on the October 2012 treatment note, is warranted. The Veteran is competent to report symptoms as to his right hand disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a higher rating or other, demonstrated functional impairment within the meaning of VA's rating schedule-require clinical (i.e., observable) findings that have been investigated by medical professionals. While the Veteran's complaints have been considered, they are not considered more persuasive on these points than the objective medical findings, as indicated above. There was no period during this appeal that a rating greater than 10 percent for service-connected residuals of a fracture of the 4th metacarpal, right hand was warranted. Hart, supra. A 10 percent evaluation, but no higher schedular evaluation, for the service-connected right 4th metacarpal fracture residuals is warranted. 38 U.S.C.A. § 5107(b). Consideration of extraschedular evaluation Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Consideration of an extraschedular rating is warranted if 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. See 38 C.F.R. § 3.321(b)(1). The Board itself cannot assign an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Since the Board itself cannot assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, then the assigned schedular evaluation is adequate. Referral for extraschedular consideration is not required, and the analysis stops. Id. All of the Veteran's described symptoms of right 4th finger fracture residuals, including pain, decreased strength, decreased dexterity, are encompassed within the rating criteria for a 10 percent evaluation under DC 8516. The evidence is devoid of description of any symptom not encompassed within the schedular criteria for evaluating partial paralysis of the ulnar nerve. Reasonable doubt as to severity of neurologic residuals has been decided in the Veteran's favor to assign the 10 percent evaluation. The Board notes that the Veteran's description of pain as the primary symptom of the residuals of the fracture is encompassed in the evaluation of neuropathy as resulting from the objective signs of residuals such as flattening of the knuckle and shortening of the bone. There is no reasonable doubt as to whether the Veteran has any symptom of right hand disability which is not encompassed in the rating criteria. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the Social Security Administration records and evaluation disclose that the Veteran remained able to perform employment tasks despite his service-connected right hand disability. Thus, the SSA records are consistent with the Board's determination that, even if analysis under Thun were to continue to the second step, the Veteran's right hand disability does not present exceptional disability picture so as to warrant referral for extraschedular consideration. There is no evidence which requires referral of the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). The threshold determination for a referral for extraschedular consideration is not met and, consequently, the Board finds that the Veteran is not entitled to referral for an extraschedular rating for ulcer disability during this period. Thun, 22 Vet. App. at 115. ORDER The appeal for a compensable, 10 percent evaluation, but no higher rating, for residuals of a fracture of the 4th metacarpal, right hand, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ S. FINN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs