Citation Nr: 1338618 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-02 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a separate compensable rating for a neurological impairment of the left index finger. 2. Entitlement to a rating in excess of 10 percent for the orthopedic impairment of the left index finger. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to April 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran, on his substantive appeal, received in January 2010, requested a videoconference hearing before a Veterans Law Judge. Such a hearing was scheduled in January 2011 but the Veteran did not appear and did not provide a reason for his failure to appear. As such, the Board considers the Veteran's hearing request to have been withdrawn. In June 2011, September 2012, and May 2013, the Board remanded the above issues for additional development. The claim for a rating in excess of 10 percent for the orthopedic impairment of the left index finger is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative evidence of record shows that the Veteran's left index finger disability is not manifested by any adverse neurological symptomatology. CONCLUSION OF LAW The criteria for a separate compensable rating for a neurological impairment of the left index finger have not been met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.14, 4.31, 4.124, 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2013). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that in letters dated in September 2008 and May 2013 the RO provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. Moreover, even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with additional notice in the above letters followed by a readjudication of the claim in the August 2013 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from the Social Security Administration (SSA) and the Memphis VA Medical Center, in substantial compliance with the Board's remand directions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The post-remand August 2013 supplemental statement of the case also substantially complied with the Board's remand directions because it included a discussion of whether the Veteran is entitled to a separate compensable rating for any neurological impairment of the left index finger. Id. The Veteran was also provided a post-remand VA examination in July 2013. In August 2012, an addendum was obtained to that examination. Moreover, the Board finds that the examination and addendum are adequate for rating purposes and substantially complies with the Board's remand directions because after comprehensive examinations of the claimant as well as after taking a detailed history from the claimant and after a review of the record on appeal the examiner provided opinions as to the origins and severity of any neurological disability that allows the Board to rate it under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, D'Aries; Dyment. The May 2012 and March 2013 examiners also opined on the functional impact the Veteran's hearing was having on his daily activities and employment. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In summary, the facts relevant to this appeal have been properly developed and 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. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA and VBMS. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran's asserts that he is entitled to a separate compensable rating for the neurological problems caused by his service-connected left index finger disability because it interferes with his activities of daily living, he cannot do normal things, and he has difficulty grasping or gripping items. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Lastly, the Board notes that in Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for the appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. Given the Veteran's claims regarding the location of the neurological impairment caused by his service-connected left finger disability, the Board finds that 38 C.F.R. § 4.124a, Diagnostic Code 8515 is the most applicable Diagnostic Code because it best contemplates the physiology and functional impairment imposed by the disease. See Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of a diagnostic code should be upheld so long as it is supported by explanation and evidence). In this regard, because the record shows that the Veteran is right handed, Diagnostic Code 8515 provides a 10 percent rating for mild incomplete paralysis of the median nerve in the minor upper extremity; a 20 percent rating for moderate incomplete paralysis of the median nerve in the minor upper extremity; a 40 percent rating for severe incomplete paralysis of the median nerve in the minor upper extremity; and a 60 percent rating for complete paralysis of the median nerve in the minor upper extremity. 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). With the above criteria in mind, the Board notes that the VA examiner at the July 2013 VA examination and in the August 2013 addendum opined, in substance, that the Veteran did not have a separate neurological disability caused by his service-connected left index finger because neurological examination of the left index finger was normal. While earlier VA examinations and treatment records documented the Veteran's complaints and treatment for adverse left index finger symptomatology which the appellant attributed to a neurological component of his service connected disability, nothing in these records, including the October 2008 and September 2012 VA examination report and the VA outpatient treatment records, contradicts the July 2013 VA examiner's opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, when examined by VA in October 2008 and July 2011, his neurological examination was likewise normal. Therefore, while the term "moderate" incomplete paralysis of the median nerve is not defined by regulation, the Board finds that it must mean more than what the Veteran is experiencing. Accordingly, the Board finds that the claim for a separate compensable rating for neurological impairment of the left index finger is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board finds that this is true at all times during the pendency of the appeal because the severity of the Veteran's adverse symptoms has been substantially the same during this time. See Hart. In reaching the above conclusion, the Board has not overlooked the various lay statements found in the record from the Veteran and others. In this regard, the Veteran is credible to report on what he sees and feels and other people are credible to report on what they can see. See Davidson. However, the Board finds more probative the medical opinions as to the origins and severity of his disability provided by the experts at the VA examination than these lay assertions. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); 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. . ."). ORDER A separate compensable rating for a neurological impairment of the left index finger is denied. REMAND As to the claim for a rating in excess of 10 percent for the orthopedic impairment of the left index finger, while the appeal was in remand status the Veteran was afforded a VA examination in June 2013. However, the subsequent August 2013 supplemental statement of the case did not address this issue despite this additional pertinent evidence. Therefore, the Board finds that this issue must be remanded for the issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012) (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Accordingly, this issue case is REMANDED to the RO/AMC for the following action: After associating with the claims file any outstanding pertinent records, readjudicate the Veteran's claim for rating in excess of 10 percent for the orthopedic impairment of the left index finger in a supplemental statement of the case. Thereafter, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs