Citation Nr: 1334127 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-19 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased disability rating for right long finger extensor tendon laceration, currently rated as 10 percent disabling. 2. Entitlement to an initial compensable disability rating for a right hand scar associated with laceration of the right long finger extensor tendon. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU). REPRESENTATION Appellant (Veteran) represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Portland, Oregon Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied an increase above the existing 10 percent disability rating for right long finger extensor tendon laceration. The RO granted separate service connection for a right hand scar associated with laceration of the right long finger extensor tendon, and assigned a 0 percent, noncompensable disability rating for the scar. In October 2012, following an initial review of this matter, the Board remanded this case for additional medical inquiry. The Board has reviewed the Veteran's entire claims file, to include documents of record in his virtual VA folder. New and relevant evidence has been included in the claims file since the most recent Supplemental Statement of the Case (SSOC) dated in March 2013. The Board has considered this new evidence pursuant to the Veteran's April 2013 waiver of initial review of the evidence by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 19.31, 20.1304(c) (2013). In this matter, the Board will decide the claims to increased ratings. An issue regarding whether a TDIU is warranted in this matter is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Medical evidence of record indicates that the Veteran may have a right wrist disability that is secondary to his service-connected right long finger disability. 38 C.F.R. § 3.310. As this issue has not been adjudicated by the AOJ, the Board does not have jurisdiction over the issue. It is therefore referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's right long finger disability is characterized by complaints of stiffness, weakness, pain, and limitation of motion. 2. Evidence of record indicates that the Veteran's right hand scar is less than 6 square inches in size, and has been asymptomatic during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, for the Veteran's service-connected right long finger disorder, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.73, Diagnostic Codes 5229, 5309 (2013). 2. The criteria for a compensable disability rating, for the Veteran's service-connected right hand scar, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1). 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this matter, the RO provided the Veteran with a notification letter in January 2009 which notified the Veteran regarding what information and evidence is needed to substantiate a claim for increased rating, how disability ratings and effective dates are determined, and what information and evidence must be submitted by the Veteran and what evidence VA would obtain. Further, full notification was provided prior to the rating decision on appeal. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, as are VA medical treatment records pertaining to his disorders. The Veteran has been provided with two VA examinations into his claims during the appeal period. He underwent VA compensation examination in April 2009 and in February 2013. The reports of record address his disorders adequately. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the claims for increased rating in this matter. II. The Claims for Higher Ratings The Veteran seeks higher disability ratings for his service-connected finger disorder, and for a scar related to that disorder. He has been service connected for the finger disorder, as 10 percent disabled, since February 1972. On November 25, 2008, VA received the Veteran's claim for increased rating for the finger disorder. In the April 2009 rating decision on appeal, the RO denied his claim. For this claim, the Board will consider whether a higher rating has been warranted from November 25, 2007 (one year prior to the date of the Veteran's claim for increased rating) at any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In the April 2009 rating decision on appeal, the RO separately granted service connection for a scar on the right hand that was due to the laceration injury he suffered. The RO assigned a noncompensable rating effective November 25, 2008. The Veteran appealed the assigned rating. For this claim, the Board will consider whether a higher initial rating has been warranted from the date of claim for service connection during any stage of the appeal period. Fenderson v. West, 12 Vet. App. 119, 126 (1999); 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. A claimant's specific occupation is not for consideration under the Rating Schedule. Separate diagnostic codes identify the various disabilities. 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 evaluation will be assigned. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. The Board will address the Veteran's claims separately below. Right Long Finger Extensor Tendon Laceration The Veteran's STRs indicate that in March 1971 the extensor tendon of the Veteran's right long finger was cut by a falling window. In March 1971, the Veteran's wound was sutured. In April 1971, the lacerated tendon was repaired. Records dated in May 1972 indicate complaints of pain in the right wrist. VA compensation examination reports dated in March 1973, just following the Veteran's original claim for service connection, and in February 1975 noted post-service complaints of right wrist pain and knuckle pain over the right long finger. No swelling, limitation of motion, or tenderness in the right wrist was noted on examination. Regarding the finger, swelling, weakness, tenderness, and limitation of extension was noted, but inflammation and atrophy was not noted. The April 2009 VA examiner reported the Veteran's complaints of constant and worsening pain, stiffness, weakness, and cramping. The examiner noted the Veteran's complaints that his symptoms were interfering with his profession as a mechanic. On examination, "flexion contracture," "ulnar deviation," and a "dorsally protruding enlargement" were noted on the right long finger's "metacarpophalangeal joint." The examiner also noted a mild palpable nodule on the joint. The examiner noted intact sensation on the long finger with tenderness, reduced strength, and limited motion on extension. The February 2013 examiner indicated an examination of the Veteran and a review of the claims file. The examiner noted the Veteran's complaints of increasing symptoms of pain, weakness, and stiffness. He indicated 2-3 flare ups per day. The examiner noted painful motion, tenderness on palpation, reduced muscle strength on hand grip, limited motion between the long finger and the proximal transverse crease of the palm, and limited extension. The examiner stated that the disability impacted the Veteran's ability to work, noting that his profession as a mechanic was affected by his problems using his right hand. VA treatment records dated in January 2009 note the Veteran's consideration of surgical alternatives for the "failed surgical repair" during service of the tendon laceration on the right hand. The treating nurse described the metacarpophalangeal joint of the right long finger as "deformed" and noted "advanced arthritic changes." A treatment record in February 2009 indicates that the Veteran considered plastic surgery to address the "markedly swollen" finger joint and its "extensor tendon dysfunction." The record indicates that, due to his job requirements as a mechanic, the Veteran declined surgical repair. Based on the evidence of record, the Veteran's disorder has been rated under DC 5309-5229. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under 38 C.F.R. § 4.73, DC 5309 is used to evaluate muscular injuries to Muscle Group (MG) IX of the hand. Under 38 C.F.R. § 4.71a, DC 5229 is used to address disabilities of the long finger. Under DC 5229, a maximum of 10 percent is authorized for limitation of motion of the long finger. Hence, a higher evaluation would not be warranted under this DC. A rating in excess of 10 percent would therefore be unwarranted under the relevant provision of 38 C.F.R. § 4.71a. Under DC 5309, the rating criteria for injuries to MG IX are provided. The function of this particular MG involves the forearm muscles which act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The intrinsic muscles of the hand are thenar eminence, short flexor, opponens, abductor and adductor of the thumb, hypothenar eminence, short flexor, opponens and abductor of the little finger, four lumbricales, four dorsal, and three palmar interossei. The note for Diagnostic Code 5309 indicates that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. The hand is to be rated on limitation of motion, with a minimum of 10 percent. In this case, the Veteran is already in receipt of a 10 percent rating which, as indicated earlier, is the maximum rating under the relevant limitation of motion code here. 38 C.F.R. § 4.71a , DC 5229. A schedular rating in excess of 10 percent is not warranted under DC 5309, therefore. As such, a higher rating is unwarranted under the applicable schedular criteria. The Board notes that it has considered the applicability of other DCs for rating this particular disability. However, symptomatology related to the service-connected disorder at issue is confined to the right long finger. No other DCs provide a basis for a higher rating for the right long finger disorder and its muscular component. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102 , 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Right Hand Scar The Veteran filed his claim for service connection in November 2008, soon after the regulations pertaining to the rating of scar disorders were revised in October 2008. 38 C.F.R. § 4.118. The new regulations will apply to his claim, therefore. Under DCs 7801, 7802, 7804, and 7805 of 38 C.F.R. § 4.118, scars not on the head, face, or neck are rated. Under DC 7801, a compensable rating is warranted for deep and nonlinear scars that are at least 6 square inches in size. Under DC 7802, a compensable rating is warranted for superficial scars that are at least 144 square inches in size. The revised criteria contain no DC 7803. Under DC 7804, a compensable rating is warranted for one or two unstable or painful scars. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. A deep scar is one that is associated with underlying soft tissue damage. A superficial scar is one not associated with underlying soft tissue damage. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. 38 C.F.R. § 4.118. The medical evidence in this matter indicates that the Veteran's right hand scar is less than 6 square inches in size, is superficial and is not deep, is painless, is stable, and does not limit function or motion in the right hand. The March 1973 VA examiner noted the scar as 4.5 cm in length over the extensor surface of the long finger. The April 2009 VA examiner described the Veteran's scar as a "mildly visible, well-healed surgical scar" on the right hand. The examiner noted no "keloids, adhesions, or ulcerations." The examiner further noted not only no tenderness or pain, but actual "lack of sensation" on the scar. Similarly, the February 2013 VA examiner noted the scar as "healed and asymptomatic" and less than six square inches in size. This examiner did not indicate that the scar was deep, moreover. VA treatment records dated between 2009 and 2012 are entirely negative for symptoms related to the scar. Finally, in none of the Veteran's lay statements of record does he contend that his scar is unstable, painful, deep, larger than 6 square inches, or productive of limitation of motion or function. In sum, the evidence of record indicates that the Veteran has a scar on his right hand related to the in-service injury and surgical repair. However, no evidence, dated during the appeal period indicates that the scar is symptomatic or larger than 6 square inches. 38 C.F.R. § 4.118. Indeed, as detailed above, the record is clear that the Veteran's limitations and symptoms in his right hand relate to the underlying injury and its residuals rather than to the scar tissue. As such, a compensable rating for the right hand scar is unwarranted. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's hand injury and residuals are appropriately contemplated by the rating schedule, particularly the criteria for a 10 percent evaluation under DC 5229 and DC 5309, which compensate the types of pain and limitation of which the Veteran has complained. His symptoms are directly contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. Thun. ORDER Entitlement to an increased disability rating for right long finger extensor tendon laceration is denied. Entitlement to an initial compensable disability rating for a right hand scar associated with laceration of the right long finger extensor tendon is denied. REMAND In claims for higher evaluations, a determination regarding entitlement to a TDIU should be made when the appellant claims he is unable to work due to a service-connected disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that his right hand disorder is significantly affecting his employability. His assertions are corroborated by the February 2013 VA examiner who found that the disorder adversely affected the Veteran's "ability to work[.]" Based on this evidence, the RO should adjudicate whether a TDIU is warranted. As the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), a determination should be made as to whether an extraschedular rating would be warranted for TDIU. 38 C.F.R. § 4.16(b) (2012). Notice regarding this claim must be provided pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Send to the Veteran a VCAA notification letter regarding the issue of entitlement to a TDIU. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his right hand disorder. The claims file and a copy of this remand must be made available to the examiner in conjunction with the requested examination, and the examiner should indicate that the claims file was reviewed in conjunction with the examination. All necessary tests should be conducted, and the Veteran's complaints should be recorded in full. The examiner should address the severity of all symptoms caused by the service-connected hand disorder. The examiner should also indicate whether the hand disorder prevents the Veteran from securing or maintaining substantially gainful employment. 3. Thereafter, adjudicate a claim to a TDIU. If a benefit sought on appeal remains denied, the Veteran and his representative should be provided with a SSOC. Allow an appropriate period of time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs