Citation Nr: 1338928	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  12-17 174	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an initial compensable evaluation for service-connected residuals of a fracture of the right little finger. 
 

REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shari Gordon, Associate Counsel






INTRODUCTION

The Veteran served on active duty from May 1975 to May 1979. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  A claim for a higher rating for hearing loss was addressed in an October 2011 statement of the case, but the Veteran limited his appeal to the right little finger issue.

In November 2011, the Veteran requested that he be afforded a Board video conference hearing.  The morning on which the hearing was scheduled--January 15, 2013, the Veteran withdrew his request.  Accordingly, the Board finds that it may proceed to address the claim.  See 38 C.F.R. § 20.702(e) (2013).

The issue of entitlement to service connection for a right hand disability has been raised (see September 2010 Notice of Disagreement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).  Therefore, the Board does not have jurisdiction over it and thus, it is referred to the AOJ for appropriate action.

In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system.


FINDING OF FACT

The Veteran's right little finger disability causes deformity, limitation of motion, and pain, with no evidence of arthritis.



CONCLUSION OF LAW

The criteria for an initial compensable evaluation for residuals of a right little finger fracture are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5227, 5230 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

Further, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.

As for the service-connected right little finger disability, the claim for a higher disability rating is a "downstream" issue in that it arose from an initial grant of service connection.  Prior to the June 2010 rating decision, the RO issued a letter in April 2008 that advised the Veteran of the evidence necessary to substantiate his claim for service connection and of his and VA's respective obligations with regard to obtaining evidence.  As previously noted, in the June 2010 rating action, the RO granted service connection for residuals of a right little finger injury and rated this disability as noncompensably disabling, effective March 5, 2008.

Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated, thereby making 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice requirements.  Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The April 2008 letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations.

In addition, the RO obtained the Veteran's service treatment records, post-service private treatment records, and VA fee-basis examination and medical opinion, and lay statements.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file.  Accordingly, VA has no duty to inform or assist that was unmet with respect to obtaining all available identified treatment records.

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A.        § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath, 1 Vet. App. at 589.  Where the veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection, and staged ratings are to be considered.

Diagnostic Code 5156 provides for a 10 percent rating where there is amputation of the little finger of the major or minor hand without metacarpal resection at the proximal interphalangeal joint or proximal thereto.  A maximum 20 percent rating is warranted for amputation with metacarpal resection (more than one-half the bone lost of the major or minor hand).  38 C.F.R. § 4.71a. 

Diagnostic Code 5227 provides for a noncompensable (zero percent) rating for unfavorable or favorable ankylosis of the ring or little finger of the major or minor hand.  38 C.F.R. § 4.71a.  A Note to Diagnostic Code 5227 advises the rater to "also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of digits or interference with overall function of the hand."  Id. 

Diagnostic Code 5230 provides for a schedular maximum noncompensable rating for any limitation of motion of the ring or little finger of the major or minor hand.  38 C.F.R. § 4.71a.  The Veteran has been rated under this diagnostic code.

The preamble to 38 C.F.R. § 4.71a, Codes 5216 to 5230, provides, in relevant part, that: (1) For the long, ring, and little fingers (digits III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand.  The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads.  Only joints in these positions are considered to be in favorable position.  For digits II through V, the MP joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion.  See 38 C.F.R. § 4.71a, Table "Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand."

During an April 2010 VA examination, the Veteran complained of pain, limited motion, swelling, and deformity of the right little finger.  Specifically, the Veteran reported severe flare-ups that consisted of weakness at the base of the right little finger and the inability to lift objects and maintain a firm grasp.  As treatment, he reported the use of pain relief medication, both over-the-counter and prescription.  The Veteran stated that he is currently employed as a maintenance man and reported less than a week absence from work during the past 12 months due to his hand becoming sore and needing rest.  The Veteran further described the disability's impact on his occupational activities, namely having decreased mobility, decreased manual dexterity, and problems with lifting and carrying objects.  He reported that during flare-ups, he has to use the left hand and that rubbing the painful area sometimes helps relieve the pain.  The examiner further found no effects of the condition on the Veteran's usual daily activities in regards to chores, shopping, feeding, bathing, dressing, toileting, and grooming.  The examiner found moderate effects involving the Veteran's activity during exercise, sports, and recreation and mild effects on traveling. 

The Veteran had motion of the right little finger, with range of motion of the PIP joint from 0 to 100 degrees without pain, motion of the MP joint from 0 to 90 degrees without pain, and motion of the DIP joint from 0 to 70 degrees without pain.  The examiner reported no additional loss of motion after repetition at any joint.  Deformity was noted at the MP joint of the right little finger at an angle of 30 degrees.  The right little finger jutted out at the same thirty degree angle while the Veteran did most of his activities, such as writing, touching, and expressing.  The Veteran was able to write with a closed finger with concentration.  No decrease in strength for pushing, pulling, and twisting was found.  No decreased dexterity for twisting, probing, writing, touching, and expression was found.  Ankylosis of one or more digits was not found.  The Veteran was diagnosed with right hand little finger residuals as a result of his in-service fracture.  The examiner determined that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis.

Based on the above evidence, entitlement to an initial compensable disability rating for the Veteran's service-connected residuals of a right little finger fracture cannot be granted.  While the Veteran has limitation of motion as a result of his disability, only a noncompensable disability rating can be assigned for any limitation of motion of a little finger under Diagnostic Code 5230.

Additionally, there was no evidence at either the April 2010 VA examination or in the available private treatment records showing that the Veteran suffers from ankylosis of the right little finger.  The Board also finds that the symptoms and functional impairment noted do not approximate amputation of the involved finger as the Veteran still has retained most function of the hand, albeit limited with some activities.  Such minor limitations cannot reasonably be said to approximate amputation.  The evidence does not reflect any impairment of function of the other fingers on the Veteran's right hand that is attributable to his service-connected fracture.  Accordingly, ratings under Diagnostic Codes 5227 and 5156 are not warranted.

The Board must also consider whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Here, the Board notes the Veteran's testimony regarding impairment of function in occupational settings, such as lifting and carrying objects, pain during flare-ups, and decreased mobility and manual dexterity; however, the Board finds the objective clinical findings contained in the examination report of record to be more probative in establishing that the Veteran does not suffer from additional disability due to repetitive use of his right little finger or loss of use of his right hand; a higher rating is not warranted on that basis.  

The Veteran is competent and credible to report that he experiences pain in the right little finger.  Although pain may cause a functional loss, pain itself does not constitute functional loss.  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  As discussed in detail above, such a level of functional loss is not shown here.

The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Therefore, the Board is unable to identify a reasonable basis for granting an initial compensable rating for the Veteran's disability at any time during the pendency of the claim.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).

The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1)  for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath, 1 Vet. App. at 589.  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 veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009).  As discussed, the above rating criteria reasonably describe the Veteran's disability level and symptomatology resulting from his service-connected residuals of a fracture of the right little finger.  Specifically, there is limited motion, pain, and deformity associated with his right little finger, and such are contemplated by the rating schedule.  (The provisions of 38 C.F.R. § 4.45 (2013) specifically require that such impairments be addressed in the context of limitation of motion criteria.  DeLuca, supra.)  Thus, as the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is in order.  Id.


ORDER

Entitlement to an initial compensable evaluation for service-connected residuals of a fracture of the right little finger is denied.  



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs