Citation Nr: 1335531 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-10 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating higher than 10 percent for the service-connected residuals of a left thumb fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from June 1972 to June 1976. This matter arises before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents are potentially relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record. However, in adjudicating the claim in July 2012, the Agency of Original Jurisdiction (AOJ) failed to include a statement of the reasons for its decision. 38 U.S.C.A. § 5104(b) (West 2002); 38 C.F.R. § 3.103(f) (2013). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is right-handed. 2. The competent evidence of record shows that the Veteran's service-connected residuals of a left thumb fracture are manifested by favorable ankylosis, pain at a gap of less than one inch when opposing thumb, inability to maintain grasp, numbness, and tingling. CONCLUSION OF LAW The criteria for an evaluation higher than 10 percent for the service-connected residuals of a left thumb fracture have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5224 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In October 2011 correspondence, the RO advised the Veteran of what the evidence must show to establish entitlement to an increased evaluation for his claimed disorder and described the types of evidence that the Veteran should submit in support of his claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The Veteran was also notified regarding the elements of degree of disability and effective date. The Board notes that the Veteran was provided with adequate notice with respect to his increased rating claim by virtue of the aforementioned VCAA notice letter. That document informed the Veteran of the necessity of providing on his own or with VA assistance medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the Veteran's employment and daily life. The letter also notified the Veteran that, should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic code(s) and included examples of pertinent medical and lay evidence that the Veteran may submit or ask the Secretary to obtain relevant to establishing entitlement to increased compensation. The Board further notes that the Veteran was provided with a copy of the June 2012 and September 2012 rating decisions and the January 2013 statement of the case, which cumulatively included a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with a compensation and pension examination in November 2011, obtained the Veteran's VA treatment records, and associated the Veteran's service treatment records (STRs) with the claims file. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it included the Veteran's subjective complaints about his disability and the objective findings needed to rate the disability. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically 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 (West 2002); 38 C.F.R. § 4.1 (2013). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis Disabilities of the thumb are rated under 38 C.F.R. § 4.71a (schedule of ratings - musculoskeletal system). The RO assigned the Veteran a 10 percent disability rating under Diagnostic Code 5224, effective June 21, 2011, the date he filed his claim. Under this Diagnostic Code, a rating of 10 percent is awarded for favorable ankylosis and a rating of 20 percent is awarded for unfavorable ankylosis. If both the carpometacarpal and interphalangeal joints are ankylosed, the joint should be rated as unfavorable ankylosis even if each joint is individually fixed in a favorable position. If only the carpometacarpal or interphalangeal joint is ankylosed and there is a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers, the thumb should be evaluated as unfavorable ankylosis. If only the carpometacarpal or interphalangeal joint is ankylosed and there is a gap of two inches or less between the thumb pad and the fingers with the thumb attempting to oppose the fingers, the thumb should be evaluated as favorable ankylosis. 38 C.F.R. § 4.71(a), Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand (4)(ii)-(iv) (2013). The same criteria apply for the dominant and non-dominant hand. A note to Diagnostic Code 5224 states to also consider whether evaluation of amputation is warranted and whether additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall functioning of the hand. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68 (2013). Amputation of the thumb is rated under the criteria of Diagnostic Code 5152, which distinguishes between the major (dominant) and minor (non-dominant) hand. The Veteran is right-handed, so the criteria for the minor hand apply. A rating of 20 percent is warranted for amputation at the distal joint or through the distal phalanx or for amputation at the metacarpophalangeal joint or through the proximal phalanx. A rating of 30 percent is warranted for amputation with metacarpal resection. The Veteran presented for a compensation and pension examination for his thumb in November 2011. At the examination, the Veteran told the examiner that he felt pain and fatigue in his left hand while driving or holding objects. He also complained that his thumb fatigued easily, was not able to maintain grasp, and was painful. Upon examination, the Veteran experienced limitation of motion or evidence of painful motion in his left thumb. He was able to oppose his thumb, as there was no gap between his thumb pad and fingers, but he felt pain during motion beginning at a gap of less than one inch between his thumb pad and fingers. There was no gap between the Veteran's fingertips and the proximal transverse crease of his palm or evidence of painful motion in attempting to touch the palm with the fingertips. Nor was there limitation of extension or evidence of painful motion for the index finger or long finger. The Veteran was able to perform repetitive-use testing with three repetitions, but he experienced additional limitation of motion for his left thumb post-test. There was, however, no gap between his thumb pad and fingers or between any fingertips and the proximal transverse crease of the palm post-test. Similarly, there was no limitation of extension for the index finger post-test. After repetitive use testing, the Veteran's left thumb had less movement than normal, weakened movement, excess fatigability, incoordination or the impaired ability to execute skilled movements smoothly, pain on movement, and deformity. None of the Veteran's other fingers displayed any symptoms after repetitive-use testing. The Veteran also reported tenderness or pain to palpation in only his left thumb, and his hand grip strength was reduced to 3/5, indicating active movement against gravity. The examiner noted that the Veteran had interphalangeal joint ankylosis of the left thumb in extension and in full flexion, resulting in the Veteran's inability to maintain grasp and hold pressure, as well as fatigue and pain. However, the Veteran did not have any scars or other pertinent physical findings, complications, conditions, or signs and/or symptoms related to his disability. Nor did he use any assistive devices. The examiner concluded that there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis due to the Veteran's thumb disability. He was unable to describe any arthritis, however, because the Veteran did not attend the diagnostic appointment. From March 2010 through October 2011, the Veteran's VA treatment records indicate that his extremities had no swelling, edema, clubbing, or cyanosis. He then presented to the VA Medical Center in Amarillo in April 2012. Upon physical examination, his digits and nails were normal to inspection and palpation without clubbing, cyanosis, inflammation, or petechiae. All joints and bones appeared normal without swelling, erythema, or tenderness, and he had normal range of motion, stability, and alignment. In his February 2013 substantive appeal, the Veteran restated his symptoms. He claimed that he experienced a lot of pain, numbness, and tingling and was unable to grab items without losing his grip. He also wrote that his disability affected his everyday life and his ability to perform everyday activities. Thus, after reviewing the evidence of record, the Board finds that the Veteran's left thumb disability has not approximated the criteria for an increased 20 percent disability rating under Diagnostic Code 5224. In so finding, the Board observes that the November 2011 compensation and pension examiner found ankylosis only in the interphalangeal joint of the Veteran's left thumb, and it was only in extension and full flexion with no gap between the thumb pad and the fingers. Thus, the Board finds that this disability does not approximate the criteria of unfavorable ankylosis. The Board further finds that the Veteran is not entitled to an increased rating based on ankylosis under an analogous diagnostic code, as there is no evidence that he has ankylosis of another finger. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5216-5223; 5225-5227 (2013). Similarly, there is no evidence that the Veteran had a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 38 C.F.R. §§ 4.71a, Diagnostic Code 5228 (2013). Rather, the evidence shows that the Veteran experiences pain at a gap of less than one inch. Finally, the evidence has not shown that the Veteran's left thumb disability has reduced his hand's function to the point where a separate rating under the amputation diagnostic code is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5152 (2013). The Board further notes that to the extent that the Veteran's service-connected disability affects his employment, such has been contemplated in the assignment of the current disability rating. The evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, referral to the RO for consideration of the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2013) is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating higher than 10 percent for the service-connected residuals of a left thumb fracture is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs