Citation Nr: 1336289 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-28 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a compensable evaluation for a right fifth finger disability, status post fracture (major hand). REPRESENTATION Appellant represented by: Christopher Aldo Porco, Attorney ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran requested a videoconference hearing before the Board. The hearing was scheduled for September 10, 2012. However, the Veteran cancelled the request. Accordingly, the hearing request has been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. While the record reflects that the Veteran was laid off during the appeal period, the Veteran has not argued nor does the record otherwise reflect that his service-connected disability renders him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. The issue of entitlement to service connection for a neurological disability of the right hand to include as secondary to service-connected 5th finger, status post fracture (major hand) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT The most competent and probative evidence reflects that the Veteran's right fifth finger disability, status post fracture (major hand) has manifested in pain, decreased strength, weakness, decreased functional use, but has not manifested in ankylosis and the functional impairment does not rise to such that it would be equally well served by an amputation with prosthesis. CONCLUSION OF LAW The criteria for a compensable evaluation for a right fifth finger disability, status post fracture (major hand) are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.71a, Diagnostic Code 5230 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A May 2010 letter satisfied the duty to notify provisions to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to assist the Veteran has also been satisfied in this case. The service treatment records and private medical treatment records have been obtained and associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in June 2010. 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 the VA examination report to be adequate as the examiner provided the manifestations of the Veteran's disability and discussed whether there was functional impairment. The VA examination was dated more than three years ago. The mere passage of time, alone, is not sufficient to trigger a remand for another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The evidence of record contains a July 2011 private treatment record which indicated that the symptoms worsened and included findings of weakness, pain, decreased functional use, and decreased strength. However, the Board finds that the evidence of record is adequate to evaluate the Veteran's disability as the private treatment record contains findings relevant to the rating criteria at issue in this case to include range of motion testing and a description of the manifestations of the Veteran's disability. Another examination is not required. See 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. Legal Criteria - Rating Disabilities Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Criteria for Right Fifth Finger Status Post Fracture (Major Hand) The Veteran's disability is evaluated as noncompensably disabling under Diagnostic Code 5230. A maximum zero percent rating is assigned under Diagnostic Code 5230 for any limitation of motion of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). See 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2013). Amputation of the little finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto warrants a 10 percent evaluation. Amputation of the little finger with metacarpal resection (more than half the bone lost) warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5156. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, multiple involvements of the metacarpal and carpal joints of the upper extremities are considered groups of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45 (2013). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination, or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Analysis The Veteran contends that his service-connected disability warrants a compensable evaluation. For historical purposes, the service treatment records reflect that the Veteran sustained a fracture to the fifth metacarpal of the right hand. The separation report of medical examination shows a diagnosis of dropped knuckle, 5th metacarpal, right. In an October 1971 rating decision, the Veteran was granted service connection for fracture head right fifth metacarpal and was assigned a noncompensable disability evaluation pursuant to Diagnostic Code 5299. In August 2009, the Veteran filed a claim for an increased evaluation for his service-connected fifth finger, status post fracture (major hand). In a June 2010 rating decision, the RO continued the noncompensable disability evaluation pursuant to Diagnostic Code 5230. The Veteran was provided a VA examination in June 2010. The examiner reviewed the claims file. The problem was an old fracture of the right hand fifth metacarpal. There was no history of hospitalization or surgery. There was no history of flare-ups of joint symptoms. There was no overall decrease in hand strength or hand dexterity. On examination, the range of motion findings for the DIP joint, PIP joint, and MP joint were normal. The little finger range of motion revealed no objective evidence of pain, no limitation of motion, and no objective evidence of pain following repetitive motion testing and no additional limitation of motion. There was no ankylosis. There was no deformity. There was no decreased strength for pushing, pulling, and twisting. There was no decreased dexterity for twisting, probing, writing, touching, and expression. The X-ray of the Veteran's right hand was normal. The examiner noted that the X-ray revealed that the joint spaces were well-preserved. The Veteran was employed and did not report any time lost from work during the last 12-month period. The diagnosis was listed as "normal osseous structures of the right hand." There were no effects of the condition on usual daily activities and no clinical or radiological evidence of any osseous abnormality. A July 2011 private treatment record conducted for the purposes of occupational therapy shows that the Veteran reported that he broke his hand and his symptoms were worse. The therapist noted that the Veteran was an office worker but was laid off in March 2011. He had a dull ache in his right fifth digit. He stated that it increased when it was bumped and when he grasped the steering wheel. He wore padded work gloves to protect the hand during laborious activity. The therapist stated that the range of motion testing was within normal limits for all digits. There was some mild weakness and resistive 5th digit abduction of the right. The fifth PIP and MCP joints exhibited ligament laxity. The Veteran had pain, decreased strength, decreased functional use (moderate), and impaired sensation/hypersensitivity (fair). In an accompanying report, the therapist stated that the Veteran was within normal limits for his right hand grip strength, but was in the very low end of the norm. The ligament laxity of right 5th MCP and PIP joints may contribute to increased pain during grasping tasks as full stability was not available. The therapist also indicated that the findings suggested that further evaluation should be considered for both the median and ulnar nerves as he tested fair during the 2-point evaluation. A private electrodiagnostic consultation and examination was provided in August 2011 to rule out possible bilateral carpal tunnel syndrome. The Veteran believed his symptoms were related to an old injury he sustained involving a fracture of the right fifth metacarpal. He noticed increased problems with intermittent numbness and a sensation that the medial aspect of the hand goes to sleep. He felt he had decreased grip strength. If he put pressure over the fifth metacarpal on the palmar aspect, he experienced some radiating pain. Dr. Edmond J. Ducommun explained that the results reflected an essentially normal electrodiagnostic examination. However, Dr. Ducommun stated that although the results were inconclusive, there may be a lesion isolated to the dorsal ulnar cutaneous nerve in the distal forearm or wrist area or may represent a mild entrapment at the elbow. Diagnostic Code 5230 provides a maximum disability evaluation of zero percent for any limitation of motion for the ring or little finger. A higher evaluation cannot be assigned under Diagnostic Code 5230. The Board has considered the application of other diagnostic codes. There is no evidence of arthritis and, therefore, Diagnostic Codes 5003/5010, are not for application. In addition, there is no evidence of ankylosis. Therefore, the diagnostic code pertaining to ankylosis of the ring or little finger is not for application. 38 C.F.R. § 4.71a, Diagnostic Code 5227. The Board has also considered whether a higher evaluation is warranted under Diagnostic Code 5156. 38 C.F.R. § 4.71a. The Board finds that the Veteran's disability would not be better served by amputation with prosthesis. The June 2010 VA examiner indicated that there was no clinical or radiological evidence of any osseous abnormality. Further, even though the private records note complaints of loss of strength, pain, weakness, and decreased functional use, the range of motion testing was normal. In addition, the Veteran stated that he still participated in laborious activity and wore gloves to protect his hands. While the Veteran's grip strength was in the very low end of normal, it was still within the range of normal. Therefore, a compensable or higher evaluation is not warranted under Diagnostic Code 5156. The Board has considered whether a compensable evaluation is warranted based upon functional loss due to flare-ups, pain, fatigability, incoordination, lack of endurance, and weakness. Pain was noted; however, this is already contemplated by the current noncompensable evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. Even considering the Veteran's pain and functional loss, a compensable evaluation is not warranted because there is no compensable schedular evaluation available for limitation of motion of the fifth finger. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (maintaining that once a particular joint is rated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). Furthermore, the functional impairment due to pain, weakness, and grip strength, does not rise to the level of functional impairment which would be equally well served by amputation with prosthesis. Therefore, a compensable evaluation based upon functional impairment is not warranted. The symptoms that the Veteran experiences are contemplated by the noncompensable evaluation. Staged ratings are not warranted as there is no period on appeal during which the disability manifested symptoms meriting a compensable disability evaluation. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The Veteran is competent to report symptoms of the disability at issue, such as pain, weakness, decreased functional use, and decreased strength. The Board has considered such symptoms in evaluating the Veteran's disability. Indeed, the DD Form 214 reflects that the Veteran received the Combat Medical Badge and served as a field medical assistant and, therefore, he has medical knowledge. However, the Board has found that the Veteran's reported symptoms are contemplated by the noncompensable evaluation in accordance with the rating criteria. With respect to any symptoms, such as numbing and tingling, related to the right fifth finger, the Board acknowledges the case of Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). However, in this case, the Board does not find that the Veteran warrants an evaluation under a Diagnostic Code pertaining to neurological disabilities. The Board finds that any neurological disability is separate from the service-connected disability. While the Veteran has medical knowledge as noted above, the Board assigns greater probative value to the objective medical findings contained in the August 2011 private evaluation. The July 2011 occupational therapist suggested further evaluation due to the Veteran's reported symptoms. The August 2011 evaluation reflected normal findings. However, Dr. Ducommun suggested that the results were inconclusive. He only identified a possible disability involving the wrist, elbow, or forearm-not the right fifth finger, which is the service-connected disability at issue. Dr. Ducommun's report, which included an examination and interpretation of the nerve studies, is assigned greater probative value than the Veteran's blanket assertions that he has a neurological disability of the right fifth finger. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Therefore, entitlement to a compensable evaluation is not warranted. However, as noted in the Introduction, the Board has referred the issue of entitlement to service connection for a neurological disability of the hand to include as secondary to the service-connected disability for appropriate action. In light of the above, the Board finds that the preponderance of the evidence is against entitlement to a compensable evaluation for 5th finger, status post fracture (major hand). Consequently, the benefit-of-the-doubt rule is not applicable and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Consideration The Board has considered referral for extraschedular consideration. 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). An extraschedular disability evaluation is warranted based 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) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular evalulation. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation. With respect to the first prong in Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected 5th finger, status post fracture (major hand) is inadequate. The criteria under Diagnostic Code 5230 encompass the Veteran's symptoms. The rating criteria provide a higher evaluation, but the Veteran's disability is not as well served by amputation with prosthesis. Even if the criteria were inadequate, the evidence does not reflect an exceptional or unusual disability. The evidence does not reflect frequent periods of hospitalization. Further, the evidence does not reflect marked impairment with employment. While the Veteran's disability may have some impact on employment, the evidence and objective medical findings does not indicate marked impairment with employment. Therefore, referral for extraschedular consideration is not warranted. ORDER Entitlement to a compensable evaluation for a right fifth finger disability, status post fracture (major hand) is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs