Citation Nr: 1334023	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  13-03 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for tendonitis of the right ring finger, as secondary to a service-connected tendon laceration of the right thumb.  


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active military service from July 1977 to July 1981.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 


FINDING OF FACT

The Veteran's tendonitis of the right ring finger manifests as decreased range of motion, a flexion deformity, and painful movement without further limitation of motion.


CONCLUSION OF LAW

The criteria for a compensable evaluation for tendonitis of the right ring finger have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes ("DC") 5227, 5230 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters
 
In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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 & Supp. 2012); 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 Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. 

For these reasons, VA has satisfied its duty to notify. 

The duty to assist provisions of the VCAA have also been met. The claims file contains service treatment records, post-service medical treatment, and a VA compensation examination report from February 2010. 

The RO provided the Veteran with a VA examination.  The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests.  The claims file was reviewed by the examiner. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Merits Analysis

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DC). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. The Veteran is appealing an initial evaluation following an initial award of service connection for his right ring finger disability.  As such, evidence contemporaneous with the claim and the initial rating decision is most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

The Veteran is right hand dominant; his left hand is his minor extremity.  His tendonitis in his right ring finger is currently assigned a noncompensable evaluation under DC 5230, limitation of motion of the ring or little finger.  38 C.F.R. § 4.71a. For both the major and minor hand, the only available disability evaluation under DC 5230 is a noncompensable evaluation.  Id. 

The Board has also considered DC 5227, ankylosis of the ring or little finger.  38 C.F.R. § 4.71a.  However, such a disability still only warrants a noncompensable evaluation for both the major and minor extremities.  Id.  Further, in February 2010, a VA examiner found that the Veteran did not have ankylosis. 

The Veteran underwent a VA hand, thumb, and examination in February 2010.  The examiner found the Veteran had "pain in his right ring finger, specifically around the proximal interphalangeal (PIP) joint and proximally along the tendon with any type of range of motion."  The Veteran claimed to have lost strength in his hand and had pain when gripping or lifting objects.  The examiner found tenderness to palpation at the "PIP and the MTP [metacarpalphalangeal] joint[s]" of the right ring finger.  A goniometer measured flexion of the right ring finger at the MTP joint at 90 degrees, 50 degrees at the PIP joint, and 80 degrees at the distal interphalangeal joint, with pain in the last 10 degrees of each of these modalities.  Repetitive range of motion testing caused no change in baseline range of motion or pain values for the right ring finger.  The examiner diagnosed the Veteran with tendonitis of the right ring finger, secondary to a service-connected tendon laceration of the right thumb.

When an evaluation of a disability is based upon limitation of motion, such as under DC 5230, the Board must also 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 from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

However, the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion of the major ring finger, and therefore it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  Johnston, 10 Vet. App. at 80.

The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. There is no evidentiary basis upon which to assign a compensable rating and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating.  Hart, 21 Vet. App. at 505.  As there is no Diagnostic Code under which a compensable evaluation is warranted for a disability of the ring finger, the Veteran's claim must be denied, even when considering his painful motion. 

The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case.  38 C.F.R. § 3.321(b)(1) (2012).  The Veteran has not presented any evidence that his tendonitis of his right ring finger results in a unique disability that is not addressed by the rating criteria.  Specifically, there is no evidence of frequent hospitalization or medical interventions.  There is no evidence that the Veteran's disability markedly interferes with his ability to work, above and beyond that contemplated by his separate schedular rating.  See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability).  Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation.  See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). 



ORDER

A compensable disability evaluation for tendonitis of the right ring finger is denied. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs