Citation Nr: 1337264 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-17 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial compensable rating for residuals of right hand fractures to include fourth (ring) finger fracture, fifth (little) finger fracture, and degenerative changes to the fourth metacarpophanlangeal (MCP) joint. 2. Entitlement to an initial compensable rating for a surgical scar over the right fourth (ring) metacarpophalangeal (MCP) joint. ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active duty service from July 26, 1989 to August 11, 1989, February 17, 2004 to September 30, 2005, and February 2, 2008 to January 25, 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for residuals of a right hand fracture to include degenerative changes to the fourth MCP joint and a surgical scar over the right fourth MCP joint. The Board notes, the Veteran residuals of a hand fracture include fractures in the ring finger and little finger. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. FINDINGS OF FACT 1. The Veteran's right hand is his non-dominant hand. 2. The Veteran's residuals of a residuals of right hand fractures to include fourth (ring) finger fracture, fifth (little) finger fracture, which are intact, do not manifest with ankylosis of both the metacarpophalangeal and proximal interphalangeal joints. 2. The Veteran has mild degenerative changes in a single fourth (ring) finger MCP joint of his right hand. 2. The Veteran's 2.5 cm linear surgical scar over his right fourth (ring) metacarpophalangeal joint is not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of right hand fractures to include fourth (ring) finger fracture, fifth (little) finger fracture, and degenerative changes to the fourth (ring) finger's MCP joint have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.25, 4.40-4.46, 4.69, 4.68, 4.71a, Diagnostic Codes (DC) 5003, 5010, 5156, 5219, 5223, 5227, 5230, 5155 (2013). 2. The criteria for an initial compensable rating for a surgical scar over the right fourth metacarpophalangeal (MCP) joint have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes (DC), 7804, 7805 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 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 v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, notice was provided to the Veteran March 2009 prior to the initial adjudication of his claim in August 2009. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). The RO associated the Veteran's service treatment records, records submitted by the Veteran, and VA treatment records with the claims file. The Board notes that the Veteran requested a 120 day extension to submit additional evidence in support of his claim which was received by VA on June 20, 2011. The VA responded to this letter on June 30, 2011, when VA informed the Veteran that his request for an extension would be considered a substantive appeal and requested that he submit additional evidence in support of his appeal within 60 days. No additional evidence was submitted by October 27, 2011, and the Veteran's claim was certified to the Board. Additionally, the Veteran has not identified any treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In June 2009, VA provided the Veteran with a medical examination and obtained a medical opinion addressing the status of the Veteran's disabilities. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's disabilities, and the examiner provided a sufficiently detailed description of the current state of the Veteran's disabilities, with supporting analysis. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Evidence of Record As mentioned above, a medical examination was conducted in June of 2009. In this examination, the medical examiner noted that the Veteran's medical records were reviewed and the medical history and complaints were recited. The examiner then provided a description of the Veteran's functional impairment in relation to the Veteran's ring finger fracture and little finger fracture. [The Veteran] has pain a couple of times a month, especially in the winter that can last for several days to a level of 4. Precipitating factors for these flareups include cold weather and repetitive physical activities. He does feel there is additional limitation of motion and more difficulty performing daily tasks as the two fingers can stiffen up. This holds true for his activities of daily living. With both occupational function as port security and in his daily activities, it is somewhat more difficult to type because his fingers do not line up with the keys like they used to. He has also been noted to have his shots thrown off during handgun qualifying exercises because he uses his right hand as the supporting hand. He is left-handed. He does note that he has trouble deviating his two fingers radially. And that there tends to be an angulated gap between the third and fourth fingers. [...] The [V]eteran does have a very mild flareup of pain to level one noted following the examination with three repetitions of motion. In regards to the Veteran's range of motion, the examiner noted: "[t]here is full range of motion of the fingers of the right hand with metacarpophalangeal joint to both fourth and fifth digits. [...] MCP joint to 95 degrees of flexion in the fourth and fifth digits, PIP joint to 110 in both fourth and fifth digits, and DIP to 85 in the digits. The examiner also stated an x-ray was conducted in conjunction with the June 2009 examination where mild degenerative changes in the fourth MCP joint were noted. The VA examiner then turned to the Veteran's surgical scar over the right fourth MCP joint and stated: [t]here is a 2.5 cm very faint well-healed linear surgical scar over the fourth [MCP] joint. There is no irregularity, atrophy, shininess, scaliness, instability, breakdown of skin, elevation, depression, inflammation, edema, keloid formation, induration, or inflexibility of the skin in the area [of] the scar. [...] the scar resulting from the surgical procedure is well healed without residua[l] as noted ..." The diagnosis was: "Residuals of right hand fracture with occasional residual pain and ulnar deviation of the fourth and fifth fingers in the relaxed state. The scar resulting from the surgical procedure is well healed without residua[l] as noted in detail above." III. Initial Increased Ratings The evaluation of service connected disabilities is based on the average impairment of earning capacity they produce as determined by considering current symptomatology in light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet App. 589 (1991). In addition, the entire history of the Veteran's disability is also considered. Consideration must be given to the ability of the Veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of the 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a Veteran may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When rating a disability of the musculoskeletal system, functional loss due to pain, weakened movement, fatigability, and pain on movement are factors to be considered. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. §§ 4.68, 4.25 (2013). A. Residual of Right Hand Fractures The Veteran contends he is entitled to a higher disability rating for residuals of a right hand fractures in the ring finger and little finger to include degenerative changes to the fourth MCP joint. The Veteran's service-connected residuals of a right hand ring finger fracture and little finger fracture are currently rated under Diagnostic Code (DC) 5230. Per DC 5230, limitation of motion of the ring finger or little finger is to be rated as noncompensable. A compensable rating for a ring finger or little finger disability requires amputation, or the functional equivalent thereof. See 38 C.F.R. § 4.71a, DC 5155. In order for ankylosis to be rated as analogous to amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a, DC 5216. In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints either in extension or full flexion. Id. Note (3)(ii) explains that if both the metacarpophalangeal and proximal interphalangeal joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position. Note (3)(iii) indicates that if only the metacarpophalangeal or proximal interphalangeal joint were ankylosed, and there was a gap of more than 2 inches (5.1 cm) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis. In this regard, amputation of the ring finger warrants a 10 percent rating without metacarpal resection at the proximal interphalangeal joint or proximal thereto. A 20 percent rating is warranted with full metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a, DC 5155. In order for the Veteran to receive a compensable rating under the schedule for a disability of multiple fingers under DC 5219 and 5223, both the Veteran's ring finger and little finger need to be either unfavorably or favorably ankylosised. Additionally, under Note 5 preceding DC 5216, when there is limitation of motion of two or more fingers, each finger is to be rated separately and the rating combined. Turning to arthritis, under DC 5010 when arthritis is due to trauma substantiated by x-ray findings, it is to be rated under - arthritis, degenerative - DC 5003. Per DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. (Emphasis added). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion the following ratings apply: 20 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joints groups, with occasional incapacitating exacerbations; a 10 rating is warranted with x-ray evidence of if involvement of two or more major joints or two or more minor joints groups. Minor joints are defined for the purpose of rating a disability from arthritis as multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. See 38 C.F.R. § 4.45(f). Under DC 5215, note 1 contains the schedule that sets forth the normal range of movement for digits II through V. The MCP joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint (DIP) has a range of zero to 70 or 90 degrees of flexion. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69. Based on the evidence of record, the Board finds that a compensable rating for residuals of a right hand fractures to include the ring finger fracture, little finger fracture and degenerative changes in the MCP joint of the ring finger is not warranted at any time during this appeal. As outlined above, the governing criteria provide that a compensable rating for ring finger or little finger disabilities is warranted only when there is amputation of the fingers or equivalent impairment (e.g., extremely unfavorable ankylosis as in the note cited above). In this case, the ring and little fingers are intact, and there is no indication that both the metacarpophalangeal and proximal interphalangeal joints of either finger were ankylosed. In fact, the examiner specifically found that the Veteran had full range of motion in his ring finger and little fingers. The Board finds that the rating criteria under DC 5219 and 5223 for multiple joints are not applicable as the VA examiner noted there is no limitation of motion in the Veteran's ring or little finger. Likewise, in reference to Note 5 preceding DC 5216, which allows for combination of separately rated fingers, the Board notes that application of this note does not warrant a change in the Veteran's noncompensable rating as both the ring finger and little finger are rated as noncompensable. The Board notes DC 5003 is not applicable because the Veteran has x- ray evidence of mild degenerative change in only a single MCP joint of his ring finger, which is defined as a minor joint under 38 C.F.R. § 4.45(f). The rating criteria explicitly states that x-ray evidence of two or more minor joints groups is needed to warrant a compensable rating. The Board has considered whether a higher disability rating is warranted for the Veteran's residuals of a ring finger and little finger fracture based on functional loss due to pain, weakness and flare-ups, pursuant to 38 C.F.R. §§ 4.40 and 4.45, and per the Court's holding in DeLuca. However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. In this case, the Veteran is receiving a non-compensable rating for finger disability under DC 5230. This rating is the maximum rating allowable. Accordingly, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration. In reaching the above conclusions, the Board has not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. finger pain and limitation of motion. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the VA examiner should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches [...] As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). In light of the foregoing, the Board finds that an initial, compensable rating is not warranted for residuals of a fracture of the right hand as manifestations of this disability were not shown to meet the criteria for a higher rating under any applicable Diagnostic Code. As such, the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds a compensable rating for the residuals of his right hand fractures of his ring finger and little finger to include degenerative changes to his ring finger MCP joint is not warranted. B. Surgical Scar The Veteran contends that he is entitled to a compensable rating for his surgical scar over the right fourth MCP joint. The Veteran's service-connected surgical scar over the right fourth MCP joint is currently rated under DC 7804 - scars, unstable or painful. Under 7804, a compensable rating is warranted when one or two scars are unstable or painful. A 20 percent rating is warranted when three or four scars are unstable or painful, and a 30 percent rating is warranted when there are five or more scars that are unstable or painful. An unstable scar is defined under Note 1 proceeding DC 7804 which states an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Here, the VA examiner noted "the scar resulting from the surgical procedure is well healed without residua[l]." Indeed, the VA examiner states the scar is "very faint," and the Veteran does not contend that his scar is painful. The Board notes that the VA examiner mentions the Veteran experiences pain "a couple times of month", however, from the continued context "precipitating factors for these flareups include cold weather and repetitive physical activities" the Board finds it clear that the VA examiner is referring to joint pain and not pain related to the Veteran's surgical scar. Therefore, the Board finds that there is no evidence the Veteran's surgical scar over the right fourth MCP joint is unstable or painful, and as such, a compensable rating is not warranted. IV. Extraschedular The Board has considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, although there were alternate diagnostic codes that allow for higher ratings under certain circumstances, the Board fully explained why the higher ratings were not warranted. The Board acknowledges the Veteran's reports that at times he has difficulty both typing and qualifying with his with gun because of the residuals of his hand fractures. However, the Board refers to DC 5230 which considers lack of movement in the noncompensable rating. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. ORDER Entitlement to an initial compensable rating for residuals of right hand fractures to include fourth (ring) finger fracture, fifth (little) finger fracture, and degenerative to the changes.to the fourth MCP joint is denied. Entitlement to an initial compensable rating for a surgical scar over the right fourth MCP joint is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs