Citation Nr: 1335494 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-09 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction, currently rated 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability. ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from July 1878 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran seeks an increased rating for residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction, and total disability rating based on individual unemployability (TDIU). Prior to the instant Board decision, the Board issued a decision in April 2011. The Board decision granted the Veteran an increased rating for his traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction, and referred the issue of TDIU to the RO. The RO developed the claim and issued the November 2011 decision which is now the basis for the instant appeal. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has one right hand scar which is stable, superficial, and linear and does not cause limitation of motion to his ring or little finger. 2. Residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction have not been met. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.130, Diagnostic Codes 7804, 5155, 5230 (2013). 2. The criteria for a TDIU have not been met, and there is no evidence to warrant referral for consideration of a TDIU on an extra-schedular basis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159 , 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in May 2011 and April 2013. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records, the RO also communicated to the Veteran that it would attempt to obtain any private medical records requested by the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Also, the RO determined and obtained relevant records of the Veteran from the Social Security Administration. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). A VA contract examination for traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction was conducted in July 2011. 38 C.F.R. § 3.159(c)(4). The examiner conducted a medical examination, which included: examination of the specific history of the Veteran's traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction, pre and post military history, conducted a physical examination, a review of the Veteran's musculoskeletal system, range of motion testing, and gave a diagnosis with remarks. Since the examination included sufficient detail as to the current severity of the Veteran's traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction, the Board concludes that the examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). II. Legal Criteria The Veteran has been assigned a 10 percent disability rating for residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction effective March 2008. The Veteran seeks an increased rating and TDIU. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating applies when 1 or 2 scars are unstable or painful. A 20 percent rating applies when 3 or 4 scars are unstable or painful. A 30 percent rating applies when 5 or more scars are unstable or painful. Pursuant to Note 2, if one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Under 38 C.F.R. § 4.118, Diagnostic Code 5230, a 0 percent rating applies when the ring or little finger has limitation of motion. Under 38 C.F.R. § 4.118, Diagnostic Code 5155, compensation is warranted when the ring finger is amputated. 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); 38 C.F.R. § 3.102. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 3.321 , 3.340, 3.341, 4.16, 4.19 III. Legal Analysis In the Veteran's Notice of Disagreement (NOD) received December 2011, the Veteran stated that he has problems with his right hand, specifically pain and strain in his hand. In submissions to the Board in April 2013 the Veteran further stated that he has loss of strength in his right hand, and arthritis in his right hand. In July 2011 the Veteran underwent a contract VA exam. The Veteran reported pain to his right hand, specifically to his right ring and little finger. The Veteran also reported decreased strength, decreased dexterity, locking, stiffness, and swelling to his right ring and little finger. The Veteran also reported having about three flare-ups a day lasting about three hours each. On a scale of one to ten, the Veteran placed his pain at around a seven. The Veteran was able to perform many daily activities, such as brush his teeth, drive a car, cook, dress and groom himself, take the trash out, and walk. The Veteran stated that he worked as a water plant operator which he has performed since 2008. The only tasks recorded that the Veteran was unable to perform was gardening and pushing a lawn mower. The examiner examined the Veteran's skin and scar on the Veteran's right ring finger reporting: There is a scar precisely located right ring finger. This is a linear scar. The entire scar measures 10 cm by .5 cm. The scar is not painful on examination. There is no skin breakdown. This is a superficial scar with no underlying tissue damage. Inflammation is absent. Edema is absent. There is no keloid formation. The scar is disfiguring. The scar does not limit the claimant's motion. There is no limitation of function due to the scar. The Veteran's hands and fingers did not reveal a decrease in strength with pulling, pushing and twisting, and the right ring finger had a deformity at the DIP and PIP joints. The Veteran did not have ankylosis. The examiner also reported that the Veteran did not have limitation of motion with his right hand and fingers. The Veteran did not show limitation of motion after frequent use nor did the Veteran exhibit pain on motion. In discussing the Veteran's ability to be employed the examiner stated that the residuals of a avulsion injury of the right fourth flexor profundus tendon with reconstruction does not affect the Veteran's ability to do either physical or sedentary activities of employment. Any limitations found by the examiner were due to disabilities other than the Veteran's avulsion injury of the right fourth flexor profundus tendon with reconstruction. The Board has considered the aforementioned evidence and concludes that the 10 percent evaluation assigned for the Veteran's avulsion injury of the right fourth flexor profundus tendon with reconstruction is appropriate. The Veteran has complained of pain in his right hand. Upon examination the VA examiner stated that Veteran had one scar to his right hand. Under Diagnostic Code 7804 a single scar that is unstable or painful warrants a 10 percent disability rating. The Veteran is not entitled to a higher rating under 7804 because it requires three or more scars. No other indicia of impairment of the right hand was reported. Thus, the Veteran's current 10 percent disability rating under Diagnostic Code 7804 is proper. While the Veteran is competent to discuss his pain pursuant to Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the more determinative factor is the number of scars the Veteran has. The Veteran is similarly not entitled to a higher disability rating under Diagnostic Codes 5230 and 5155. The Veteran has not had his finger amputated, nor is there any recorded limitation of range of motion to his right fingers. Therefore a higher evaluation is not warranted under Diagnostic Codes 5230 and 5155. The Board has considered the aforementioned evidence and concludes that the Veteran does not qualify for a schedular or extraschedular finding of TDIU. The Veteran is currently rated at 10 percent disabled for residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction and therefore does not meet the schedular requirements for TDIU. At the Veteran's July 2011 examination the Veteran stated that he was working as a water plant operator since 2008. The examiner further declared that the residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction does not affect the Veteran's ability to do both physical or sedentary activities of employment. Furthermore, a grant of TDIU is premised on whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran is currently gainfully employed. For the reasons indicated, the Board finds that a preponderance of the evidence is against the claim for TDIU, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that 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)(2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The Veteran's scar and claimed painful motion are adequately contemplated by the rating criteria under Diagnostic Code 7804. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case. ORDER A rating in excess of 10 percent for residuals of a traumatic avulsion injury of the right fourth flexor profundus tendon with reconstruction is denied. The claim of entitlement to TDIU benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs