Citation Nr: 1335228 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-05 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable disability rating for service-connected left thumb injury residuals. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in that file reveals that they are either duplicative of the evidence in the VBMS file or are irrelevant to the issue on appeal. The Veteran served on active duty from December 1986 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). A videoconference hearing was held in February 2008 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The claim was remanded in September 2008 for additional development, to include the obtainment of a contemporaneous examination. In September 2011 the claim was again remanded for additional development, and it has now been returned to the Board for further appellate consideration. The Board is satisfied that there has been substantial compliance with the remand directives, and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT The Veteran's residuals of a thumb fracture is manifested by subjective reports of pain and weakness and some functional loss associated with the thumb such as less movement than normal and weakened movement, incoordination, pain on movement, swelling, and deformity. Gaps were not measurable because the Veteran complained of pain. CONCLUSION OF LAW The criteria for a disability rating of 10 percent for left thumb injury residuals are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5224, 5228 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the claim on appeal, it does not appear that the Veteran was provided complete notice with respect to his increased rating claim for left thumb residuals until initial rating claims until June 2013, after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ 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, supra. During the February 2006 hearing, in relevant part, the presiding VLJ identified the present issue on appeal, and the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the current appellate claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Veteran has been afforded appropriate VA examinations, most recently in August 2012. He has not asserted, and the evidence of record does not show, that his left thumb disability has increased significantly in severity since that examination. The Board accordingly finds that any procedural errors on the originating agency's part were insignificant and non-prejudicial. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, 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 (2012). 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Also, traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. When limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating will be assigned for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003 (2012). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. While the entire recorded history of a disability is to be reviewed by the rating specialist, the regulations do not give past medical report precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. Laws and Regulations The Veteran's left thumb has been rated as noncompensable pursuant to DC 5224 for ankylosis of the thumb. 38 C.F.R. § 4.71a (2012). Under these rating criteria, favorable ankylosis of the minor thumb is rated as 10 percent disabling, and unfavorable ankylosis of the minor thumb is rated as 20 percent disabling. Another code potentially applicable is DC 5228 for limitation of motion of the thumb. Under these criteria, the dominant thumb with a gap less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers is noncompensable. If there is a gap between one to two inches (2.5 to 5.1 cm), then a 10 percent rating is warranted, and if there is a gap more than two inches (5.1 cm), a 20 percent rating is warranted. Background Service connection for residuals of a fracture of the left thumb (minor) has been in effect from August 1996. This appeal ensued following his request for an increased rating in 2005. When examined by VA in November 2005, the Veteran reported constant bilateral hand pain. There was stiffness and sensitivity to touch. He said that he retired early due to his hand condition. Examination of the left hand showed no erythema or edema. There was decreased range of motion (ROM) of the metacarpophalangeal (MP) joint of the thumb with flexion to 60 degrees. He had full ROM of the other fingers. He was able to approximate his thumb to all fingers. X-ray evidence showed degenerative changes in the 2nd through 5th fingers (but not the thumb). At his February 2006 video conference hearing, the Veteran testified as difficulties he experienced due to his left thumb residuals. For example, he experienced problems buttoning his shirt or using a zipper. His thumb was always stiff, and he could not bend it very well. (Tr. at page 4.) When seen at a private facility in February 2009, the Veteran continued to report pain and stiffness in the left thumb. His thumb residuals restricted his ability to enjoy leisure activities such as playing basketball. There was tenderness to palpation in the left thumb. ROM was restricted (e.g., 19 degrees of flexion with extension of 23 degrees). In statements of the record, the Veteran's wife, son, and daughter, attested to the severity of the Veteran's left thumb residuals. His wife reported dexterity problems, as well as swelling and pain in the thumb. Upon VA examination of the thumb in August 2012, the Veteran reported symptoms of pain and stiffness. The examiner stated that there was no gap between the thumb pad and the fingers, but that there was functional loss associated with the left thumb as there was less movement than normal. There was weakened movement, incoordination, pain no movement, swelling, and deformity. The examiner indicated that he was not able to measure gaps because the Veteran refused due to pain. It was further noted that there was no ankylosis of the thumb. Grip strength was 4/5. Arthritis in the hand (but not the thumb) was noted. Analysis Upon review of the evidence of record, the Board finds that the Veteran is entitled to a 10 percent rating, but no more, for his left thumb disability based upon functional limitation due to pain. 38 C.F.R. § 4.59 (2012). The Veteran and members of his family have credibly and consistently reported that the thumb area of his left hand is painful and stiff, and he has described ongoing difficulty when trying to button up his shirt or participate in other activities. The Board also recognizes that the 2012 VA examiner found some loss of motion (less than normal) due to pain, weakened movement, and incoordination. However, limitation of motion of the thumb with a gap between the thumb and fingers was not shown. Thus, a rating in excess of 10 percent is not warranted pursuant to DC 5228. Moreover, a separate rating for left thumb arthritis not demonstrated as no such arthritis is shown. DC 5010, 5003. Thus, while a 10 percent rating is granted, the Veteran is not entitled to a rating in excess of such. He does not meet the criteria for a rating in excess of 10 percent pursuant to any of the applicable DCs as discussed above. The Veteran is entitled to a 10 percent rating, but no more, for his left thumb disability. Additional Considerations Consideration has been given to assigning a staged rating; however, at no time during the period in question has either disability warranted more than a 10 percent rating. See Francisco and Fenderson, supra. The Board has considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the service-connected left thumb disability are contemplated by the schedular criteria. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b) (West 2002 & Supp. 2012); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determination above the Board has considered not only the medical evidence but also the lay evidence presented by the Veteran and his family in the form of correspondence to VA and statements made during VA examinations. As a layperson, the Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than that currently awarded. ORDER A 10 percent rating for residuals of a fracture of the left thumb (minor) is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs