Citation Nr: 1335592 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-27 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to special monthly compensation (SMC) based on loss of use of the right hand. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from July 1958 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of February 2009. The Veteran failed to report for a Board hearing scheduled in San Antonio, Texas, in March 2012, and a request for postponement was not received; therefore, the hearing request is considered to be withdrawn. 38 C.F.R. § 20.704(d) (2013). The appeal was remanded by the Board in October 2012. As noted in the October 2012 Board remand, claims for an increased rating for the service-connected post-operative residuals of a right index finger injury (to include entitlement to a separate compensable rating for right index finger scarring) and for service connection for a disability manifested by earaches, dizziness, and excoriation of the ear as secondary to the service-connected hearing loss have been raised by the record. Additionally, the Board finds that a claim for service connection for stenosing tenosynovitis (trigger finger) of the right index finger has been raised by the record. This is not inextricably intertwined with the SMC claim currently on appeal, because even with consideration of those symptoms, loss of use of the right hand has not been shown. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). These three claims are referred to the agency of original jurisdiction (AOJ) for appropriate action. Please note that 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). FINDING OF FACT The Veteran's remaining function in his right hand, including the ability to grasp and manipulate objects, surpasses function which he would have with an amputation stump with prosthesis. CONCLUSION OF LAW The criteria for SMC based on loss of use of the right hand have not been met. 38 U.S.C.A. § 1114(k) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350 , 4.63 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). In a letter dated in January 2013, the RO advised the claimant of the information necessary to substantiate the claim for SMC based on loss of use of the hand, and of his and VA's respective obligations for obtaining specified different types of evidence. He was also provided with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in a May 2013 supplemental statement of the case. Therefore, any timing defect in the provision of this aspect of the notice was harmless error. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained, as have VA treatment records. He has not identified or authorized the release of any private records. The Veteran's VA vocational rehabilitation evaluation (VRE) folder has been obtained. A VA examination was obtained in February 2013, which was adequate for the purposes of the decision decided herein. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to the October 2012 Board remand, additional VA treatment records and the VRE file were obtained, adequate notice concerning the SMC claim was furnished, and the Veteran was provided with an adequate examination concerning the claim at issue. Thus, the Board finds that the remand terms have been substantially complied with. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the veteran is entitled to substantial compliance with the Board's remand directives). The Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. SMC Factual Background Service treatment records show that the Veteran sustained a compound fracture of the right index finger when he "smashed" it in December 1959. Records note follow-up treatment for the next six weeks. No further mention of the condition was noted in the service treatment records. In June 1977, service connection was granted for residuals of the right index finger injury, and a 10 percent rating was assigned, based on findings of limitation of motion and paresthesia shown on a VA examination in April 1977. The next mention of the right index finger disability contained in the claims file is a VA treatment record dated in May 2008, noting that the Veteran complained of chronic, constant pain in the right index finger and hand, of two weeks duration. He said the pain interfered with activities of daily living, normal work, enjoyment of life, and relations with others. When evaluated by a physician, the right second finger was swollen and tender at the proximal interphalangeal (PIP) joint, and the Veteran was referred for an orthopedic consultation. The VA orthopedic consultation was provided in August 2008. At that time, the Veteran complained that his index finger had hurt, snapped, and felt stiff for six months, and was getting worse. The Veteran was concerned that an old injury of the right index fingertip in 1960 may have caused this current problem. On examination, there were soft, pale, well-healed scars at the right index finger distal pulp with decreased sensation radially only. There was slight shortening of the tip as compared with the left index fingertip. There was tenderness at the distal palm. Flexor tendon nodules were palpable, and slow flexion and extension were noted, but no snapping or locking. The physician said that X-rays of the right hand in May 2008 had shown an old traumatic deformity of the right index distal phalanx. The diagnosis was stenosing tenosynovitis (trigger finger) of the right index finger. He was given an injection in the A1 pulley area of the right index finger. In an October 2008 statement, the Veteran said that his severe intermittent pain of the index finger had been frequently exacerbated with normal extension and flexion while performing normal activities of daily living. He said that he had dry and cracked skin of the right finger, which was sensitive to cold. By January 2008, the pain was severe and constant, and radiated to his hand. By May 2008, range of motion and strength were compromised, causing limited fine and gross motor skills. He said that the simple task of picking up a skillet caused a powerful shocking pain through the tendon past the knuckle and into the wrist. This had limited many of his everyday activities. The Veteran underwent a VA examination of his right hand in September 2010. He said that he did not have an overall decrease in hand strength, but did have a decrease in hand dexterity. He said that he had pain and locking in the right hand, and would drop things. On examination, range of motion in all of the joints of the right index finger was normal, except that there was a gap between the index finger and proximal transverse crease of the hand on maximal flexion of the finger of less than one inch, as opposed to no gap with corresponding movements involving the left index finger. There was no ankylosis or deformity. In the space to evaluate "decreased strength for pushing, pulling and twisting," the examiner said that there was no locking, but there was tenderness over the "A1 pulley" in the palm. "Decreased dexterity for twisting, probing, writing, touching and expression" was described as slightly decreased sensation in the radial side of the fingertip. The diagnoses were right index "trigger finger," and fingertip laceration with residual loss of sensation. The examiner stated that there were no significant effects on his usual occupation, due to a right index finger condition. The examiner also stated that the service-connected disability had been stable for many years, but that, as a separate condition, he had a "trigger finger," which caused tenderness in the palm in the area of the "A1 pulley," but this was not related to his previous injury. Another VA examination was performed in February 2013. At this time, again, the Veteran was unable to touch the index finger to the proximal transverse crease of the hand, with a resulting gap of less than one inch. Otherwise, range of motion was normal; notably, the Veteran was able to oppose the thumb, i.e., touch the index finger to the thumb pad. There was no functional loss or impairment of or additional limitation of motion following repetitive testing. On muscle strength testing, hand grip on the right was 5/5. There was no ankylosis of any digit. There was slightly decreased sensation in the radial side of the fingertip. Specifically, there was no functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The condition did not affect his ability to work. The examiner opined that it was obvious that he had crush injury to the very tip of his index finger on the right side. There was no evidence of involvement of the remainder of the finger proximal to the tuft, which was the most distal one-third of the distal phalanx. The examiner stated that, based on his expertise as an orthopedic hand surgeon for over 25 years, this was not a severe type of injury that would cause significant limitation of motion or loss of function. Moreover, it would not cause more proximal problems [i.e., problems toward the arm]. The examiner indicated that the minor crush injury to the distal phalanx, resulted in minor deformity of the nailbed and slightly decreased sensation in the radial side of the fingertip. "Trigger finger" (also called stenosing flexor tenosynovitis) was a separate condition, defined as an inflammation of the flexor tendon sheath of the finger, which in turn was a tunnel between the metacarpophalangeal (MP) and distal interphalangeal (DIP) joints, and irritation or inflammation could occur as the result of repetitive use. Swelling could occur, which affected the "A1 pulley," the specialized ligament that anchored the tendon to the MP bone. The Veteran had received a "trigger finger" injection in 2008, and, at the time of the current examination, he had only subjective tenderness over the A1 pulley. The examiner noted that symptoms of "trigger finger" included locking of the finger in flexion, pain and a sensation of "snapping" with flexion, and radiation of pain into the palm or distal finger. Triggering could also cause pain which limited active flexion; here, the Veteran had active limitation of flexion but no passive limitation of flexion. The examiner's conclusions were that the Veteran's inservice injury was a very minor injury that did not result in significant limitation of motion; the examiner characterized the terminology used to describe the injury in the service treatment records as "excessive." Additionally, the examiner concluded that the "trigger finger" had resolved after his recent injection; currently, he only had tenderness of the index, long, and ring fingers at the "A1 pulley." There was minor deformity of the fingernail that was not tender and provided no loss of function. The Veteran was observed to write his name holding a pen with the right index and thumb, and was able to sign in to the clinic and print his name very legibly, which, the examiner stated, was not the equivalent of an amputation. The examiner concluded that "this injury" produced no loss of use. Analysis As pertinent to this appeal, service connection is in effect for post-operative residuals of an injury to the right index finger, with limitation of motion and paresthesia, rated 10 percent disabling. The Veteran claims that, as a result of this service-connected disability, he has loss of use of the right hand. SMC is payable for anatomical loss or loss of use of one hand. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Loss of use of a hand, for the purpose of SMC, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand, and whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2), 4.63. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence found to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Here, the VA examiner's conclusions were two-fold: first, that, except for the minor deformity of the nailbed and slightly decreased sensation in the radial side of the fingertip, the symptoms in the Veteran's right hand and index finger are due to a separate condition, "trigger finger," and, second, that the Veteran did not have loss of use of the hand. Due to his latter conclusion, it is not necessary to separate symptoms from the currently nonservice-connected condition from the service-connected condition. The examiner noted that there was no X-ray involvement of the distal interphalangeal (DIP) joint that would cause limitation of motion, whereas the orthopedic consultant said that X-rays in May 2008 had shown an old traumatic deformity of the right index distal phalanx. However, the only limitation of motion shown in this case has been the inability to flex the index finger completely, and this has been included as part of the service-connected disability picture. As a whole, the examinations have shown that the Veteran has full range of motion, except that he cannot actively touch his index finger to the palm of his hand. He can, however, touch the thumb pad. On testing of strength, his grip was normal. The February 2012 examiner found that more effective function remained than would be served by an amputation and noted that the Veteran was able to write his name and print legibly, which was not the equivalent of amputation. The Veteran's statements, on the other hand, have referred in general to limitations caused by pain. His most specific statement, in October 2008, was that range of motion and strength were compromised, causing limited fine and gross motor skills. However, the Veteran denied loss of strength on the examination in September 2010, and no loss of strength has been shown; his grip strength was normal in February 2013. No limitation of motor skills has been clinically shown, and the Veteran did not more specifically describe the limitations, other than to state that the simple task of picking up a skillet caused a powerful shocking pain through the tendon past the knuckle and into the wrist. He did not give this history, however, at that time of any examination or outpatient consultation, which would be expected if this were a regular occurrence, as opposed to a rare or one-time symptom. No further relevant findings are of record. VA treatment records do not show any finger or hand condition treatment after September 2008. Although the Veteran applied for VA vocational rehabilitation in February 2008, he did not pursue the claim further than the submission of the application form. The Board finds the detailed outpatient treatment and examination findings to be the most probative evidence. Even the Veteran's statements reflect more that he has been suffering from increased problems with his right index finger and hand, rather than that he has actual loss of use of the appendage. His grip strength on examination was normal, indicating that he is able to grasp, and, even with the numbness in the fingertip, his ability to print and sign his name indicates that he is able to manipulate objects. These activities are two key regulatory indicators of hand functioning, and the evidence as a whole demonstrates that there is no lack of hand functionality, such that the Veteran would be better served with amputation and prosthesis. The Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and this claim must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to SMC based on loss of use of the right hand is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs