Citation Nr: 1338288	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  07-35 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable evaluation for degenerative joint disease (DJD), residuals of fracture of the fourth metacarpal of the right (dominant) fourth (ring) finger disability.

2.  Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty from October 1968 to September 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for the listed disabilities and assigned an initial noncompensable rating for each.

Since the Veteran has disagreed with the initial evaluations assigned following the grant of service connection, the Board has characterized the issues on appeal as noted on the cover sheet.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The January 2007 rating decision also denied entitlement to service connection for a left arm condition, and the Veteran appealed that decision.  In a September 2007 rating decision, a decision review officer (DRO) granted service connection for residuals of left ulna fracture and assigned an initial noncompensable rating, effective in March 2006.  Notwithstanding the September 2007 rating decision, the left arm issue was still listed on the Statement of the Case (SOC).  The DRO, in a July 2008 rating decision, granted service connection for left ulnar nerve entrapment neuropathy, status postoperative, and assigned an initial noncompensable rating, also effective in March 2006.  There is no indication in the paper or the Virtual claims file that the Veteran appealed either the assigned initial rating or effective date.  Hence, any issue related to the left arm is not before the Board and will not be discussed in the decision below.  See 38 C.F.R. § 20.200 (2013); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability or the effective date).

The Veteran indicated on his October 2007 Substantive Appeal (VA Form 9) that he desired a Board hearing via video conference.  In his December 2007 response to the RO acknowledgement of his request, however, he withdrew his hearing request.
In October 2011, the Board remanded the case to the Appeals Management Center (AMC) in Washington, DC, for additional development.

In addition to his paper claims file, there is a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.  The Board has considered the documents in both files while reviewing this appeal.

In October 2013, the Veteran's representative waived initial RO review and consideration of all evidence submitted after the February 2012 Supplemental SOC.  Hence, the Board may consider such evidence in the first instance.  See 38 C.F.R. § 20.1304 (2013).


FINDINGS OF FACT

1.  The AMC completed all of the additional development directed in the October 2011 Board remand.

2.  The residuals of the Veteran's right (dominant) 4th metacarpal joint of the ring finger fracture has manifested with normal pain-free range of motion (ROM) throughout the entire initial rating period.

3.  The Veteran's bilateral hearing loss has manifested at Roman numeral Level I in each ear throughout the entire initial rating period.  An exceptional pattern of hearing impairment has not manifested at any time.

4.  Neither the ring fracture residuals nor the bilateral hearing loss-or both combined, has manifested with an exceptional disability picture.


CONCLUSIONS OF LAW

1.  The requirements for an initial compensable evaluation for right (dominant) ring finger fracture residuals have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5230 (2013).

2.  The requirements for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.85, 4.86, DC 6100.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose.

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim.  See 38 C.F.R. § 3.159(c).  Following receipt of the Veteran's claim, the RO obtained the private treatment records he identified, his VA outpatient records, and arranged VA examinations of his disabilities.  The Board notes that following a September 2008 VA examination, in an October 2008 letter, the Veteran asserted that the examination was inadequate.  The Board notes further, however, that a July 2008 deferred rating decision clearly reflects that the examination was arranged to address left elbow pathology.  The examiner was not directed to examine the right hand.  The RO's September 2008 notice letter to the Veteran informed him the examination was arranged for the left elbow.  The left elbow is not a subject of this appeal.

In addition to the assistance set forth above, in response to the Veteran's representative's assertion in October 2011, the Board remanded the case for a current examination, which was arranged by the AMC as directed.  Neither the Veteran nor his representative asserts that there is additional evidence to be obtained.  In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication.  See id.  Hence, the Board may address the merits of the appeal without prejudice to the Veteran.

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.

If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nonetheless, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings where indicated by the evidence of record.  See Fenderson, 12 Vet. App. at 126.

Right Ring Finger

The January 2007 rating decision reflects DJD as the main residual of the Veteran's right ring finger fracture residuals.  Degenerative arthritis established by X-ray is rated on the basis of limitation of motion (LOM) under the appropriate Diagnostic Codes for the joint involved.  Further, if the LOM of the joint involved is noncompensable, a rating of 10 percent is applicable.  Id.  LOM must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of LOM, but with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned.  With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned.  38 C.F.R. § 4.71a, DC 5003.  Multiple involvement of the metacarpal joints of the upper extremities are groups of minor joints ratable on parity with major joints.  38 C.F.R. § 4.45.  

With any form of arthritis, painful motion is an important factor.  It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint where functional loss is demonstrated.  38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011), clarifying Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). 

Analysis

The October 2006 examination report reflects a history of a right hand fracture in service.  The Veteran reported right-hand pain and stiffness on a daily basis, but he denied any history of flare-ups.  He did not wear a wrist splint.  He was fully independent in his activities of daily living, but he did report that he was unable to work at his former occupation as a laboratory technician due to the loss of fine motor skills.

Physical examination revealed tenderness over the right fifth metacarpal bone, and the Veteran was unable to make a fist.  There was a gap of approximately one and one-half inches between the tips of most of the phalanges and the midpalmar crease; and, there was pain upon pressure in the right hand.  X-rays referenced in the record revealed DJD at the interphalangeal joints and at the metacarpal joints, especially in the 3rd metacarpal joint.  The proximal ring finger bone demonstrated some deformity.  As noted in the Introduction, however, the grant of service connection was limited to the right ring finger.

The rating criteria define normal ROM of fingers II through V as 0 to 90 degrees.  See 38 C.F.R. § 4.71, Evaluation of Ankylosis or LOM of Single or Multiple Digits of the Hand, Note (1).  LOM of the ring or little finger is rated under DC 5230, which provides that any LOM is noncompensable.  38 C.F.R. § 4.71a.

The examination report reflects the noted gap to the midpalmar crease was "from most of his fingers."  The Board must resolve this ambiguity in the Veteran's favor and infer that the examiner included the ring finger in "most of his fingers."  Nonetheless, the rating criteria allows a compensable rating for a gap of one inch (2.5 cm) or more solely for the middle or long finger.  See 38 C.F.R. § 4.71a, DC 5229.  As noted above, the Veteran's long finger is not service connected.  The private medical records in the claims file show the middle finger to have been injured in 1993, and arthritis was diagnosed in that joint in 1995.

As noted earlier, LOM of the ring finger of any degree is not compensable.  38 C.F.R. § 4.71a, DC 5230.  Nonetheless, the examiner did not indicate any LOM of the ring finger.  Additionally, the examiner noted that repetitive-use testing did not reveal any additional functional loss due to pain, etc.

In the absence of LOM, the Board also finds no factual basis for a compensable rating as of the October 2006 examination under 38 C.F.R. § DC 5003.  As noted, the fingers are deemed minor joints.  In as much as only the Veteran's ring finger is service connected, there is no multiple minor joint involvement.  Hence, the criterion of a "group of minor joints" is not met.  Application of 38 C.F.R. § 4.59, as interpreted in Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011), does not change this result.  The examination report notes tenderness over the nonservice-connected 3rd metacarpal.  Hence, the Board is constrained to find that the Veteran's ring finger fracture residuals more nearly approximate the assigned noncompensable rating.  38 C.F.R. § 4.71a, DC 5003-5230.

The April 2008 examination report reflects the Veteran's report that he re-injured his casted right hand aboard ship when he slipped while descending a ladder.  A metal pin was inserted to stabilize the fracture.  He reported recent treatment of injections and Motrin for pain from a hand specialist.  On a scale of 1 to 10, the Veteran reported that between 2005 and 2008, he experienced pain from 2/10 up to 8/10.  He was told that a knuckle replacement would provide pain relief.  He had also reportedly experienced a 40-percent reduction in the strength of his right hand.

Physical examination of the right thumb revealed a normal metacarpophalangeal joint.  ROM was 0 to 50 degrees.  ROM of the interphalangeal joint was 0 to 90 degrees.  Examination of the metacarpophalangeal joints revealed flexion to 90 degrees with full extension to 0.  The distal interphalangeal joint ROM was also 0 to 90 degrees.  Muscle strength of the right upper extremity was 5/5.  The examiner noted the Veteran's complaint that his right-hand grip strength was reduced; but, that there was no evidence of muscular atrophy of the thenar or hypothenar eminences of both hands or the intercostal muscles.  Touch, vibration, and position sense were normal.  Examination of the scar revealed no active symptoms.  The examiner noted X-rays were interpreted as having shown mild degenerative change with an old fracture of the 4th metacarpal bone.  The examiner diagnosed old fracture of the 4th metacarpal bone with DJD.

In response to the RO's question, the examiner noted that there was an old fracture with DJD, as confirmed by X-ray.  The Veteran's complaints of right-hand weakness, however, were not clinically confirmed, the ROM of the ring finger was normal, and the right hand was normal.  The examiner also noted that repetitive-use testing did not reveal any additional loss of ROM due to factors such as pain and weakness.

The objective findings on clinical examination show the Veteran's right metacarpal joint/ring finger fracture residuals continued to more nearly approximate a noncompensable rating as of the April 2008 examination.  38 C.F.R. § 4.1, 4.71a, DC 5003-5230.

The January 2012 examination report reflects that the examiner conducted a review of the claims file as part of the examination.  At that time, the Veteran denied any functional impact due to flares.

Physical examination revealed evidence of LOM or painful motion of the thumb and the middle finger.  The examiner noted that there was no ankylosis of either the thumb or the fingers.  The examiner also noted that the only positive findings on clinical examination related to the middle finger.  The examiner noted further that X-rays did not reveal DJD in multiple joints of the right hand.

In a February 2012 addendum to the examination report, the examiner acknowledged that the Veteran is service connected for the right ring finger but stated that the subjective complaints related to the right middle or long finger.  The next sentence indicates the Veteran had no complaints regarding the long finger, but the Board deems that inconsistent with the previous sentence.  Instead, the paragraph as a whole suggests the Veteran had no complaints related to the service-connected right ring finger.  The examiner noted the examination findings were accurate; hence, the only positive subjective and objective findings related to the right long finger.  The right ring finger was found to be normal.

As earlier noted, the Veteran asserts that he has decreased strength in his right hand.  The clinical findings at the VA examinations, however, revealed normal grip strength and the absence of any muscle atrophy.  The Veteran also asserts that he has lost the use of his right hand due to his symptoms.  However, in the January 2012 examination report, the examiner noted that the Veteran retained more use of the right hand than would be present with a prosthetic device.  See 38 C.F.R. § 4.63.  While the totality of the evidence suggests the Veteran may well be unable to perform tasks he once performed with his right hand, there is simply no showing that the service-connected right ring finger fracture residuals are tantamount to loss of use.  Again, the record reflects complaints referable to other fingers of the right hand which are not service-connected.

In light of all of the above, the evidence of record shows the Veteran's right ring finger fracture residuals has more nearly approximated the assigned noncompensable rating for the entire initial rating period.  38 C.F.R. §§ 4.1, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71a, DC 5003-5230.

In January 2011, the Veteran re-submitted a September 2003 report that addressed his continued ability to perform his work as a laboratory technician.  Based on the medical reports received, the Veteran's former employer determined that he was unable to perform his duties due to multiple musculoskeletal conditions and arthritis.

An October 2007 rating decision denied a total disability rating based on individual unemployability (TDIU), and the Veteran did not appeal the decision.  The Board does not revisit the issue, see 38 C.F.R. §§ 20.200, 20.201, but does deem the information to raise the issue of the propriety of extraschedular consideration.

Extraschedular considerations

In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

The Board is precluded from granting an increased rating on an extra-schedular basis in the first instance.  38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996).  The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating.  Bagwell, 9 Vet. App. at 339.

Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional.  To do so, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008); see also VAOPGCPREC No. 6-1996 (Aug. 16, 1996), 61 Fed. Reg. 66,749 (1996), para. 7 (when service-connected disability affects employment "in ways not contemplated by the rating schedule" § 3.321(b)(1) is applicable).

In addition to his assertion of the loss of use of his right hand, which the Board rejected above, the Veteran also asserts that his right hand pathology caused him to stop using power tools which, in turn, caused him to dispose of rental property he owned.  He also asserted that he in effect was forced to take an early retirement pension, which cost him thousands of dollars.  While the Board sympathizes with the Veteran's circumstances, income differences have no bearing on whether referral for extraschedular consideration is indicated by the evidence.  Inadequacy in the rating schedule is not established a fiori solely by showing an asserted gap between a claimant's income (including VA benefits) and the income of similarly situated qualified workers in one's field.  Thun, 22 Vet. App. at 116.

As noted in the earlier discussion, the rating criteria describe finger pathology in terms of ankylosis and LOM.  As discussed above, the medical evidence of record shows the Veteran's right ring finger fracture residuals do not manifest with either.  As the Board noted above, the significant impact on the Veteran's ability to perform his former occupation was not the result of the ring finger pathology.  See Mittleider v. West, 11 Vet. App. 181 (1998).  The examiner noted at the January 2012 examination that there was no occupational impairment due to the ring finger.  Hence, while the rating schedule deems zero percent to be the extent of the impairment of earning capacity due to a ring finger disability, it does in fact anticipate the right ring finger disorder.  Accordingly, the right ring finger does not present with an exceptional disability picture.  In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of a compensable rating on an extraschedular basis.  38 C.F.R. § 3.321(b)(1).

Hearing Loss

In addition to the general requirements applicable to increased rating claims noted earlier, hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87.

The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  A Roman numeral designation will also be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

Analysis

The September 2006 audiologic examination contained the following audiometric readings: 





HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
5
15
10
35
55
28.75
LEFT
10
10
10
25
50
23.75

Speech recognition was 96 percent in each ear.  Middle ear pressure was normal in each ear; and acoustic reflexes were present at normal to elevated levels in each ear.  The examiner diagnosed a normal to moderate sensorineural hearing loss bilaterally.  A separate ENT examination revealed no ear abnormalities.

The objective examination results show each ear manifested at Roman numeral Level I.  38 C.F.R. § 4.85, Table VI.  An exceptional pattern of hearing loss was not manifested in either ear.  See 38 C.F.R. § 4.86.  Level I in each ear intersects at the zero percent level and a noncompensable rating.  38 C.F.R. § 4.85, Table VII.

At the January 2012 audiologic examination, audiometric testing was as follows:





HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
20
25
25
55
55
31.25
LEFT
15
20
15
35
55
31.25

Speech recognition was 96 percent in the right ear, and 94 percent in the left, which the examiner noted was excellent for each.  Otoscopic examination revealed normal ear canals and tympanic membrane.  The examiner deemed test reliability as good.  Contralateral acoustic reflexes were present, except at 4000 Hz bilaterally.  The examiner diagnosed a moderately severe high frequency sensorineural hearing loss bilaterally.  The examiner noted the Veteran's hearing loss had no significant occupational impact.

As the objective findings show, the Veteran's bilateral hearing loss continued to manifest at a noncompensable rate as of the January 2012 examination.  38 C.F.R. § 4.85, Table VII.  Hence, the evidence of records shows Veteran's bilateral hearing loss disability manifested at that rate throughout the entire rating period.  Thus, there is no factual basis for a staged rating for any part of the rating period.

In light of examiner's notation on occupational impact, the Board finds the issue of extraschedular consideration is not raised as concerns the bilateral hearing loss.  See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record).  Nonetheless, the Board notes that even if both the right ring finger and bilateral hearing loss are considered together, the disability picture is not rendered exceptional, as neither causes occupational impact.  See generally Johnson v. Shinseki, 26 Vet. App. 237 (2013).

In reaching the above conclusion, the Board has considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claims for compensable ratings, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).



ORDER

Entitlement to an initial compensable evaluation for DJD, residuals of fracture of the fourth metacarpal of the right (dominant) ring finger is denied.

Entitlement to an initial compensable evaluation for bilateral hearing loss is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs