Citation Nr: 1334624 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-30 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a dental disability for compensation purposes, claimed as involving a left bottom tooth. 2. Entitlement to service connection for a dental disability for purposes of eligibility for outpatient dental treatment under other than Class II, claimed as involving a left bottom tooth. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to an evaluation in excess of 10 percent for the residuals of left wrist fracture, chronic sprain. 5. Entitlement to an initial compensable evaluation for residuals of left ring finger fracture. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to April 1982, October 1997 to February 1998, July 2003 to March 2004, and October 2004 to February 2006. She served in Kuwait from January 2005 to January 2006 and is a Persian Gulf veteran. See 38 C.F.R. § 3.317(d) (2013). She also had additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2010, a hearing was held before the undersigned sitting at the RO. At that time, the Veteran submitted additional evidence with a waiver of RO jurisdiction. Additional records were also received in March 2012. RO review of these materials was waived in the September 2013 Informal Hearing Presentation. See 38 C.F.R. § 20.1304 (2013). These claims were among those previously before the Board in August 2010. They were remanded at that time for further development. A claim for service connection for a left ankle disability was granted in a February 2012 rating decision. This represents a complete grant of the benefit sought on appeal, and this matter is no longer before the Board. The remaining claims have been returned to the Board for further appellate review. The evaluation for the Veteran's left wrist disability was increased to 10 percent during the course of this appeal. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). As the evaluation is less than 100 percent, this disability remains on appeal. The Board notes that, in general, a claim for service-connected disability compensation for a dental disorder may also be treated as a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). Cf. 38 C.F.R. § 4.150 (setting forth dental and oral conditions for which compensation may be paid); 38 C.F.R. § 17.161 (setting forth criteria for authorization of outpatient dental treatment). The record shows that entitlement to Class II treatment has already been established. Accordingly, the Board has rephrased the issues as indicated on the title page. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not considered by the RO. The issue of entitlement to service connection for migraine headaches will be addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran sustained an infection of tooth #19 shortly before deployment, was treated with a root canal at a VA facility prior to deployment, and continued to receive treatment for an infection and other complications while on deployment. 2. The Veteran does not claim, and the evidence does not show, that she has a disability due to trauma to the teeth; osteomyelitis or osteoradionecrosis; loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process or hard palate; or loss of teeth due to loss of substance of the upper or lower jaw. 3. The Veteran does not have a service-connected dental condition; she does not have a service-connected dental condition resulting from a combat wound or other service trauma; it has been more than three years since she contends that she submitted her claim for treatment; she does not have a dental condition aggravating her service connected disabilities; she does not have a rating of 100 percent; she is not homeless; she was not a Prisoner of War; she is not participating in a rehabilitation program under 38 U.S.C.A., Chapter 31; and, fixing her dental problems was not medically necessary for a medical condition currently under treatment by VA. 4. The Veteran has painful motion of the wrist without ankylosis; she is also in receipt of the highest evaluation available under the applicable rating criteria. 5. The Veteran has ankylosis of the distal interphalangeal joint of the left ring finger that does not interfere with the function of the hand; she retains range of motion in the other joints of the left ring finger without additional loss of function with repetitive motion; she is also in receipt of the highest evaluation available under the applicable rating criteria. CONCLUSIONS OF LAW 1. The criteria for an award of service-connected compensation for a dental disability have not been met. 38 U.S.C.A. §§ 1110, 5107(b), 1712 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.381, 4.150, 17.161 (2013). 2. The criteria for entitlement to service connection for a dental condition for purposes of eligibility for VA outpatient dental treatment (other than Class II eligibility, which is already in effect) have not been met. 38 U.S.C.A. §§ 1712, 5107 (West 2002); 38 C.F.R. §§ 17.161, 17.164 (2013). 3. The criteria for an evaluation in excess of 10 percent for the residuals of a left wrist fracture with chronic sprain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5214, 5215 (2013). 4. The criteria for an initial compensable evaluation for the residuals of a fractured left ring finger have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5227, 5230 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In regard to the claim for a higher evaluation for the left ring finger, this appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and 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). The Board concludes that the duty to notify has been met. With respect to the service connection claims, the Veteran was provided with letters in May 2007 and July 2007 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. These letters were provided to the Veteran prior to the initial adjudication of her claims. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. The Veteran has offered testimony at a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is in the record. She was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. Further regarding the March 2010 Board hearing, the undersigned identified the issues on appeal and elicited testimony designed to substantiate the claims and identify any outstanding evidence. Thus, the duties imposed under Bryant v. Shinseki, 23 Vet. App. 488 (2010), have been met. The Board also concludes that the development requested by the August 2010 remand has been completed. The remand instructed that all VA dental records dating from June 2004, service treatment records for dental treatment, and records from ASG-Kuwait Command Sergeant Major should be requested and obtained. These were requested, but no additional records were received. A December 2011 formal finding documents the request for additional records from these sources and the negative replies that were received. Although these requests were not productive, the Veteran subsequently submitted additional dental records that were apparently in her possession. Furthermore, there is no allegation or indication that any specific record is missing. The Veteran has been afforded the examinations requested in this remand. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the instant appeal. Service Connection The Veteran contends that she is entitled to service connection for the residuals of an infected tooth in her lower left jaw. She states that she had a painful tooth #19 that was discovered shortly before her deployment to Iraq, and that she underwent a root canal at a VA facility prior to deployment. After arriving in Iraq she continued to have pain and had additional treatment. The root canal then became infected. Eventually the tooth in question was removed, and the missing tooth was then replaced by a bridge. The Veteran reports that she continues to experience swelling in the vicinity of the missing tooth and problems with the bridge itself. She claims that she sought additional treatment from VA after returning from Iraq, but that it took months to obtain an appointment, after which she changed VA facilities and there was a problem with her records. See Hearing Transcript, pages 5-6. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection for compensation purposes is available only for dental disabilities that are the result of osteomyelitis or osteoradionecrosis, or due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or due to the loss of teeth due to loss of substance of the upper or lower jaw. 38 C.F.R. § 4.150. A note to 38 C.F.R. § 4.150, Code 9913, which is the rating code for loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity, states that these criteria apply only to bone loss due to trauma or disease such as osteomyelitis. This note further adds that loss of the alveolar process as a result of periodontal disease is not included. Thus, in order to establish service connection for compensation purposes, it is not enough to show that the teeth were lost due to trauma. The evidence must demonstrate that the trauma resulted in loss of substance of the maxilla or mandible, which then resulted in the loss of the teeth. Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment in accordance with 38 C.F.R. § 17.161. 38 C.F.R. § 3.381. "Periodontal" is defined as "around a tooth." Stedman's Medical Dictionary 1330 (26th Ed.). "Gingivitis" is defined as inflammation of the gingiva, which is the tissue surrounding the teeth. Stedman's at 717. Gingivitis is, therefore, a periodontal disease. In accordance with 38 C.F.R. § 3.381, as a matter of law periodontal disease is not a disability for which service connection can be granted for the purpose of VA disability. In a precedent opinion VA's General Counsel held that dental treatment of teeth, even extractions, during service did not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Legal authority provides for various categories of eligibility for VA outpatient dental treatment, such as veterans having a compensable service-connected dental condition (Class I eligibility); veterans having a noncompensable service-connected dental condition, provided that they apply for treatment within a year after service (Class II eligibility); and those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility). There are categories of treatment for certain homeless veterans (Class II(b) eligibility), for prisoners of war (Class II(c) eligibility), and for certain categories of missing teeth if application is made before April 5, 1983 (Class IIR). Other categories include treatment for veteran's having a dental condition determined to be aggravating disability from an associated service-connected disability (Class III eligibility); veteran's whose service connected disabilities are evaluated as 100 percent, or who receive a total rating for individual unemployability (Class IV eligibility); and certain treatment for those who are enrolled in a rehabilitation program under chapter 31 (Class V eligibility). Finally, any veteran scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C. may receive outpatient dental care which is medically necessary, i.e., is for dental condition clinically determined to be complicating a medical condition currently under treatment (Class VI eligibility). 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The evidence includes VA dental records dated in June 2004 indicating that the Veteran was seen as a category 10-Class II patient on several occasions. She was complaining that the tooth associated with the root canal hurt. On examination, X-rays revealed slight overfill of the root canal tooth #19. It was noted that they could attempt to redo the root canal or extract. A probably mucogingival defect was also noted on tooth #25. They were supposed to finalize the treatment plan after perio depths were taken. Additional June 2004 records show that she was scheduled for restorative treatment. July 2004 records show she underwent a full mouth debridement, and generalized moderate interproximal calculus was noted. Her problems included accretions on her teeth and chronic gingivitis. The Veteran failed to report for VA dental treatment scheduled for November 2004. The Board observes that the Veteran returned to active duty in October 2004. An undated sick call evaluation from Camp Arifjan Dental Clinic shows that the Veteran reported problems from a previous root canal. She gave a history of swelling. The pain had been present for days. A second undated slip from Camp Arifjan Dental Clinic indicates the Veteran had a procedure described as "#19 endo Re tx." March 2005 service treatment records show that the Veteran complained of pain around tooth #19. The assessment was a recurrent infection secondary to failing root canal. Although the Veteran expressed an interest of saving the tooth, she was advised of the possible need for extraction. April 2005 service treatment records state that the Veteran had been seen by a civilian dentist the previous day who removed the left lower root canal. The Veteran reported that she now had a lot of pain on the left side. She was treated with medication. A June 2006 statement from Major J. H. indicates that the Veteran was treated at a Kuwaiti dental clinic to obtain a bridge for the lower tooth in the summer to early fall of 2005. He reported that they had to appeal to the ASG-Kuwait Command Sergeant Major so that he could authorize the treatment at the dental clinic. The dental staff had apparently refused to treat the Veteran for her missing tooth. The Board finds that an award of service connection for a dental disability for compensation purposes is not supported by the evidence. First, the Veteran does not contend, and the record does not show, that she sustained a disability as a result of a trauma. As noted above, service connection for compensation purposes is available only for dental disabilities that are the result of osteomyelitis or osteoradionecrosis; loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process or hard palate; or, loss of teeth due to loss of substance of the upper or lower jaw. While the Veteran had in infection that led to the extraction of #19, both VA and service treatment records indicate that this was due to a failed root canal. There was no diagnosis of osteomyelitis, much less loss of substance of the jaw. Neither the service treatment records nor the VA records shows that the Veteran has any of the above-noted disabilities. As there is no evidence that the Veteran has a dental disability listed in 38 C.F.R. § 4.150, the preponderance of the evidence is against the claim, and there is no basis for service connection for compensation purposes. With regard to whether service connection may be available for outpatient treatment purposes only, the record shows that the Veteran is entitled to Class II treatment as of June 2004. This was apparently based on the deployment that ended in March 2004. There is no case or controversy regarding entitlement to Class II treatment based on this period of service. However, the Veteran's most recent period of service ended in February 2006. In an October 2010 statement, she contends that she applied for dental treatment in March 2006 and that her appointment was cancelled by VA. She adds that she was told she would be contacted in order to reschedule but was never contacted. When she called VA she was told that 90 days had passed and that she was no longer eligible. Therefore, it appears to the Board that the Veteran continues to seek Class II treatment based on the period of service that ended in February 2006. Her DD 214 for this period shows that she did not receive a dental examination within 90 days of discharge. The evidence shows that the Veteran is not service-connected, at a compensable level or otherwise, for any dental disorder. Similarly, the Veteran does not allege, and the evidence does not show, that her service connected hypertension, tinnitus, left ankle, left wrist, or left ring finger are aggravated by a dental disorder. She has not previously applied for dental treatment. Also, she does not have a rating of 100 percent. Moreover, service records do not indicate, and she does not contend, that she was a POW. She is not homeless and was discharged many years after April 5, 1983. The Veteran was also not participating in a rehabilitation program under 38 U.S.C.A., Chapter 31, and fixing her dental problems was not medically necessary for a medical condition currently under treatment by VA. Finally, the record does not show that she incurred any wounds in combat. Regarding the Veteran's contention that in March 2006 she requested dental treatment based on her February 2006 discharge but that it was cancelled, the electronic record includes a list of all appointments but does not show any scheduled dental treatment after February 2006. However, while the Board finds her contention to be credible, by regulation any Veteran who is eligible for dental treatment on a one-time completion basis (class II) and who has not received such treatment within three years after filing the application shall be presumed to have abandoned the claim for dental treatment. 38 C.F.R. § 17.164. For the above reasons, the Board finds that the Veteran does not qualify for Class I, II, II(a), (b), (c), IIR, III, IV, V, or VI eligibility, because she does not satisfy the criteria for any eligibility class under 38 C.F.R. § 17.161. Accordingly, she is not entitled to dental treatment under any category other than Class II for the residuals of the infection at tooth #19. 38 C.F.R. § 17.161. Increased Evaluation The Veteran argues that her left wrist disability and disability of the left ring finger both merit higher evaluations due to pain and functional limitations. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Wrist Entitlement to service connection for a left wrist disability was established in a September 1996 rating decision and a noncompensable evaluation was assigned. During the course of the current appeal, the evaluation was increased to the current 10 percent by a February 2012 rating decision, effective from February 22, 2006. The Board observes that the increase became effective the day after the Veteran was discharged from her most recent period of active duty, which is also over a year before the March 2007 claim that led to this appeal. Therefore, it has been effective for the entire period on appeal. The Veteran's left wrist disability is evaluated under the rating code for limitation of motion of the wrist. Under this rating code, dorsiflexion to less than 15 degrees or palmar flexion that is limited in line with the forearm is evaluated as 10 percent disabling for either the major or minor limb. This is the highest evaluation under this rating code. 38 C.F.R. § 4.71a, Code 5215. There are other factors which must be considered in addition to those contained in the applicable rating code. Specifically, the Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. The Veteran was afforded a VA fee basis examination of her left wrist in October 2007. She provided a history of pain worsening by the year since 2003. The pain radiated down her arm and was throbbing and burning in nature. She described the pain as 10 on a scale of 1 to 10, and it was aggravated by typing for a prolonged period. On physical examination, dorsiflexion was to 60 degrees, palmar flexion to 60 degrees, radial deviation to 20 degrees, and ulnar deviation to 20 degrees. Tinel and Phalen tests were negative. Repetitive testing did not produce pain or limitation within the limits of the examination. The impression was no physical findings suggestive of carpal tunnel syndrome. An electromyography (EMG) was normal, as was the physical examination. VA treatment records dated from 2007 to 2008 show that the Veteran underwent extensive rehabilitation for a recent fracture to the right wrist. Service connection has not been established for this disorder. VA treatment records dated in August 2009 show that the Veteran's left wrist had 72 degrees of flexion; 45 degrees of extension; 36 degrees of ulnar deviation; and 11 degrees of radial deviation. The most recent VA examination of the left wrist was conducted in October 2010. She did not have complaints regarding her left wrist but complained of right wrist pain. The range of motion for the left wrist was dorsiflexion to 50 degrees; palmar flexion to 80 degrees; radial deviation to 20 degrees; and ulnar deviation to 45 degrees. There was no objective evidence of pain with motion, and no additional limitation of motion following repetitive movements. The Veteran described flare-ups for her non-service connected right wrist but not her service connected left wrist. The Board finds that entitlement to an increased evaluation for the Veteran's left wrist disability is not warranted. The maximum schedular evaluation is in effect under the applicable rating code. This includes consideration of additional limitation due to pain, weakness, incoordination or fatigability, as any increased compensation based on these factors must be derived from the rating criteria. As the maximum schedular evaluation is in effect, no additional discussion is necessary. Johnston v. Brown, 10 Vet. App. 80, 85 (1995). In reaching its decision, the Board has considered the potential applicability of other rating codes, but none are appropriate. The rating code for ankylosis of the wrist provides for evaluations of up to 40 percent for the minor limb. 38 C.F.R. § 4.71a, Code 5214. However, ankylosis has not been shown on any of the VA examinations, and it follows that there is no basis for a higher evaluation under this rating code. Finally, there is no evidence of a neurological disability secondary to the service connected left wrist, and entitlement to service connection for carpal tunnel syndrome was denied by the Board in the August 2010 decision. Left Ring Finger The left ring finger claim involves the Veteran's dissatisfaction with the initial rating for her disability assigned following the grant of service connection. The Court has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). The record indicates that entitlement to service connection for the residuals of a fractured left ring finger was established in a November 2007 rating decision. A zero percent evaluation was assigned, effective from June 19, 1996. The rating code for ankylosis of the ring or little finger states that a noncompensable evaluation is warranted for either favorable or unfavorable ankylosis of both the major and minor hand. This is the maximum evaluation available under this rating code. 38 C.F.R. § 4.71a, Code 5227. The rating code for limitation of motion of these digits also states that a noncompensable rating is the maximum evaluation available for limitation of motion of either of these fingers. 38 C.F.R. § 4.71a, Code 5230. Turning to the facts of record, the October 2007 VA fee basis examination shows complaints of severe pain, which was aggravated by typing and writing. The pain was rated as 10 out of 10 in intensity and was not alleviated by treatment. Physical examination showed a slight deformity, with weakness, numbness, and decreased range of motion. An X-ray study showed a prior fusion of the 4th distal interphalangeal joint. There was a decreased range of motion apart from which the examination was normal. The October 2010 VA examination noted a history of a left ring finger fracture in service, with surgery to repair the injury. There was intermittent pain in the finger. The Veteran was right handed. She reported that her symptoms included decreased strength and dexterity, as well as stiffness. There were rare flare-ups that occurred with overuse, resulting in an additional 25 percent limitation of functionality. Such flares were short-lived, lasting about 10-15 minutes. The left ring finger had range of motion from zero to 90 degrees at the metacarpophalangeal joint; zero to 100 degrees at the proximal interphalangeal joint; and no range of motion in the distal interphalangeal joint. There was no objective evidence of pain or additional limitation of motion with repetitive movement. Ankylosis was noted at 15 degrees in the distal interphalangeal joint. The examiner stated that the ankylosis did not interfere with motion of the other digits or with overall hand function. There was no decreased strength or dexterity. Her disability did not impact activities of daily living, although it did impact the speed of her typing. The Board finds that entitlement to an increased evaluation for the Veteran's old healed fracture of the fifth metacarpal bone of the left hand is not warranted. The maximum schedular evaluation is in effect under the applicable rating code. This includes consideration of additional limitation due to pain, weakness, incoordination or fatigability, as any increased compensation based on these factors must be derived from the rating criteria. As the maximum schedular evaluation is in effect, no additional discussion is necessary. Johnston v. Brown, 10 Vet. App. 80, 85 (1995). The question of whether her additional limitation of function, to include upon flare-up, entitles her to extraschedular compensation will be discussed in the following section of this decision. The Board has also considered whether or not an evaluation as amputation is warranted. However, there is no partial or full amputation of the ring finger of the left hand. As the Veteran retains full range of motion of her finger up to the distal interphalangeal, as the examiner states the ankylosis of that joint does not interfere with the function of the hand, and as she experiences only periodic pain with extended use of the finger, there is no indication that evaluation as an amputation would be appropriate. There is no basis for an additional evaluation based on limitation of motion of a second finger. Extraschedular Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate for either of the Veteran's disabilities, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); 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). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation in this case is not inadequate. Indeed, the rating criteria adequately describe the Veteran's symptoms for her left wrist and left ring finger. These symptoms include limitation of motion and pain, all of which are provided for in the rating criteria. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board notes that the Veteran does not contend, and the record does not indicate, that her disabilities prevent her from holding gainful employment. Therefore, entitlement for a total rating for compensation based upon individual unemployability due to service-connected disabilities is not for consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to service connection for a dental disability for compensation purposes, claimed as involving a left bottom tooth, is denied. Entitlement to service connection for a dental condition for purposes of eligibility for outpatient dental treatment is denied. Entitlement to an evaluation in excess of 10 percent for the residuals of left wrist fracture, chronic sprain, is denied. Entitlement to an initial compensable evaluation for residuals of left ring finger fracture is denied. REMAND The Veteran contends that she has developed migraine headaches due to active service. In the alternative, she contends that any migraine headache disability that existed prior to service was aggravated therein. As reported in the August 2010 remand, an examination noting migraines at the time of entry onto active duty in July 2003 and October 2004 is not of record. Therefore, the presumption of soundness applies. 38 C.F.R. § 3.304. The August 2010 remand also found that private medical records clearly and unmistakably show that migraine headaches existed prior to the Veteran's third and fourth periods of active duty. Specifically, a record dated in October 2001 indicates that she was on Propanolol every day and Midrin as needed for migraine headaches. Another record dated in April 2003 indicates the Veteran had frequent migraines and had already tried Maxalt and Imitrex. Therefore, the relevant inquiry is whether there is clear and unmistakable evidence that migraine headaches were not aggravated during active military service. The remand requested that the Veteran be scheduled for a VA neurological examination in order to assess the nature and etiology of her migraine headaches. The examiner was specifically requested to state "whether there is clear and unmistakable evidence to show that migraine headaches were not aggravated during her periods of active duty from July 2003 to March 2004 and from October 2004 to February 2006." Subsequently, the Veteran was afforded a VA neurological examination in October 2010. The examiner recorded the Veteran's reports that there was no aggravation of her headaches during service, and indicated that there was no basis to change the previous denials of service connection. Unfortunately, the examiner did not indicate whether the evidence regarding the lack of aggravation was "clear and unmistakable." The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board must attempt to obtain the opinion that was requested in the August 2010 remand. Accordingly, the case is REMANDED for the following action: 1. The claims folder should be returned to the examiner who conducted the October 2010 VA neurological examination. The examiner is reminded that clear and unmistakable evidence shows that migraine headaches preexisted the Veteran's periods of active duty beginning in July 2003 and October 2004. The examiner must opine whether there is clear and unmistakable (undebateable) evidence to show that migraine headaches were not aggravated during her periods of active duty from July 2003 to March 2004 and from October 2004 to February 2006. The term "aggravation" means an increase in disability during active service beyond the natural progress of the preexisting condition. The examiner should also state whether it is at least as likely as not that the migraine disorder was incurred in or related to any earlier period of active duty (from October 1981 to April 1982, and from October 1997 to February 1998). In making this determination, the examiner cannot rely solely on the absence of documented treatment but instead must also consider the Veteran's lay statements as to the onset of symptomatology. The examiner is requested to provide a complete rationale for any opinion offered. If the examiner is unable to provide any portion of this opinion without resort to speculation, the reasons and bases for that opinion should also be provided, and any missing evidence that might enable the examiner to provide the opinion should be identified. If the October 2010 examiner is no longer available, the claims folder must be provided to another examiner of at least equal qualifications in order to obtain the requested opinions. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs