Citation Nr: 1338396 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-14 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a compensable evaluation for fracture residuals of the 4th right metacarpal (hereinafter right finger disability). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to December 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a Board hearing at the RO in Newark, New Jersey in September 2011. This transcript has been associated with the file. Also at the September 2011 Board hearing, the Veteran submitted additional evidence. However, the Veteran and his representative waived RO review of this evidence and therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case. See 38 C.F.R. § 20.1304(c)(2013). Under 38 C.F.R. § 19.37 a supplemental statement of the case (SSOC) should be issued where relevant, non-duplicative evidence is received prior to the transfer of the claim to the Board. Evidence was received by the RO after the June 2010 SSOC was issued. However, the Board finds that the evidence submitted is either duplicative of previous evidence received or non-relevant to the issue on appeal. As such, the issuance of an SSOC is not necessary and the Board can move forward with adjudication of the claim. During the September 2011 Board hearing the Veteran raised the issue of entitlement to service connection for residuals of his right finger disability. Specifically radiculopathy, neuropathy, arthritis, and carpal tunnel syndrome, as secondary to his right finger disability. These issues have never been adjudicated by the RO, and therefore, are REFERRED to the RO for proper adjudication. FINDING OF FACT The Veteran has subjective complaints of pain and some limitation of motion of the right ring finger, but his disability has not been found to be equivalent to an amputation. CONCLUSION OF LAW The criteria for a compensable evaluation for a right finger disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5227 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a January 2009 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA records have been obtained and associated with the claims file. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination in February 2009 to determine the severity of his right finger disability. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed explanation for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's right finger disability has been evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5227 for ankylosis of the ring finger. Under this Diagnostic Code, a noncompensable evaluation is the maximum award available. The Board notes that in evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011), the Court further clarified the regulation and DeLuca and stated that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and is, therefore, alone not grounds for entitlement to a higher disability rating. At an October 2006 VA examination the Veteran reported swelling and pain over the 4th metacarpal. There were no problems with repetitive use and his right finger disability did not interfere with his job or daily activities. He denied flare ups or incapacitating episodes, but admitted he had pain if he had to carry things or lift heavy things. The 4th metacarpal had no deformity. There was tenderness with deep palpation. He could make a fist and had normal grip strength. At his February 2009 VA examination the Veteran reported pain and loss of strength in his right hand. He also reported swelling over the 4th metacarpal. There were no problems with repetitive use or interference with his job or daily activities. He denied flare-ups, but admitted some pain if he was doing a lot of work with the right hand such as lifting heavy objects. The examiner noted the 4th metacarpal was normal with no pain to palpation. He was able to make a full fist and his grip strength was normal. In a February 2009 treatment record the Veteran reported he had difficulty with his activities of daily living and fine motor skills due to his right finger disability. His pain was constant, achy, and sharp. His right finger also occasionally would get hot and swell and he also experienced locking and clicking. In an October 2009 record the Veteran reported pain in his right ring finger that was an 8/10 in severity. The skin overlying his 4th metacarpal was hypersensitive to light touch and cold weather. His daily activities were affected in that he could not play ball games and had difficulty opening doors. The finger was not swollen and was well aligned. No palpable bony abnormality was present. He was diagnosed with right ring finger allodynia, possibly secondary to the old metacarpal bone fracture. In a May 2010 VA treatment record the Veteran's right ring finger was not swollen. It was hypersensitive over the dorsum skin of the metacarpal bone. There was no palpable bony abnormality. See also March and September 2009 VA treatment records noting right hand pain. At the September 2011 Board hearing the Veteran testified that he experienced constant pain in his right hand. He also testified that he could not type anymore due to his right ring finger disability. After reviewing the claims file, the Board finds that the Veteran is not entitled to a compensable evaluation for his right finger disability. As noted above, he is receiving the maximum evaluation available based on Diagnostic Code 5227. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that warrants the assignment of a noncompensable rating. See 38 C.F.R. § 4.7. The Board has also considered whether a higher evaluation is warranted based on functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare ups. The February 2009 VA examiner found no loss of function due to pain, fatigue, or lack of endurance. See also October 2006 VA examination report. The October 2009 physician stated the extension deficit of the right ring finger did not appear to produce a functional defect. Furthermore, when taking the Veteran's occasional flare ups and pain into account, they do not constitute the severity of symptoms necessary for an increased rating and are contemplated by the current diagnostic code rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. There is no evidence which would warrant a higher evaluation for functional impairment. A Note to Diagnostic Code 5227 states that the rater should also consider whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a. At both his October 2006 and February 2009 VA examinations the Veteran had normal pinch strength between the thumb and digit 4. He had normal grip strength and was able to make a full fist. The evidence does not reflect limitation of motion of other digits or interference with overall function of the hand, which could warrant an additional evaluation. The same Note to Diagnostic Code 5227 also states that consideration should be given as to whether evaluation as amputation is warranted. In reviewing the records, the Veteran's right ring finger disability cannot be considered equivalent to amputation, as he still has his right ring finger and function in all parts of the finger, even if he does report pain on use and limited motion. See also February 2009 VA examination report. The Board has considered other potentially applicable Diagnostic Codes to evaluate the Veteran's right finger disability. The Board notes that the Veteran has complained of limitation of motion of the right ring finger and, as such, the Board has considered Diagnostic Code 5230 for limitation of motion of the ring or little finger. However, under Diagnostic Code 5230, for any limitation of motion of the ring or little finger the maximum evaluation available is zero percent. 38 C.F.R. § 4.71a, Diagnostic Code 5230. As such, application of Diagnostic Code 5230 does not warrant a higher disability evaluation than the Veteran already has. In addition to the medical evidence, the Board has considered the statements and testimony of the Veteran in support of his claim. The Veteran, as a layman, is competent to report on that as to which he has personal knowledge, such as pain and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since the allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and, thus, probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, as a layman, without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his right finger disability in relation to the applicable rating criteria. An examiner, including the VA compensation examiners, takes into consideration the Veteran's subjective complaints and objective findings in determining the overall severity of his right finger disability. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As such, the Board finds that entitlement to a compensable evaluation for the Veteran's right finger disability has not been established. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Board finds no such evidence in this particular instance, however. The Veteran's complaints related to his right finger disability are considered under the appropriate diagnostic code. His primary symptoms are pain and limitation of motion. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected right finger disability is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to a compensable evaluation for a right finger disability is denied. ____________________________________________ D.C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs