Citation Nr: 1339745 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 08-02 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for the residuals of a right index finger fracture and extensor tendon repair of the right ring finger. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active service from December 1983 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, granting service connection for the residuals of a right index finger fracture and extensor tendon repair of the right ring finger. An initial disability rating of 10 percent was awarded. In December 2011, the Board remanded the appeal for additional development and the case has now returned to the Board for adjudication. Review of the Virtual VA electronic folder (efolder) includes the Informal Hearing Presentation submitted by the Veteran's representative on his behalf. The efolder does include additional pertinent evidence that is not already associated with the physical claims folder. An August 2012 letter from the Appeals Management Center (AMC) reflects that the January 2012 VA examination report raised additional issues of service connection for right long finger. The issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran does not have ankylosis in either the right index or ring finger. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the residuals of a right index finger fracture and extensor tendon repair of the right ring finger have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes 5223, 5229, 5230 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated. Additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the record indicates that the Veteran was provided with adequate VCAA notice in January 2008. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. He was notified about how to substantiate his right hand increased rating claim, including disability ratings and effective dates. Although this notice was not received prior to the initial adjudication by the AOJ, he had opportunities to submit additional evidence in light of this notice in subsequently AOJ adjudication. This course of corrective action fulfills VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to notify has been met. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and private medical records. He has not identified additional medical records concerning his right fingers. He was afforded March 2005 and January 2012 VA examinations to assess the severity of his service-connected right index and ring finger disabilities. There is no indication that the Veteran's right index and ring finger disabilities have materially increased since the January 2012 VA examination. In the December 2011 remand, the Board instructed the AOJ to obtained additional medical records, schedule another VA examination, and readjudicate the claim following the development. A December 2011 letter requested the Veteran to identify any additional VA and/or private medical treatment he had had for his right index and ring finger disabilities. He did not identify any additional medical treatment records. A VA examination was conducted in January 2012 to assess the severity of the Veteran's service-connected right index and ring finger disabilities. The January 2012 examination was thorough, contained all pertinent findings, and was responsive to the questions posed by the Board. Accordingly, the AOJ substantially complied with all of the Board's relevant December 2011 remand instructions and VA has no further duty to obtain any additional records or conduct additional examinations. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis The Veteran contends that his service-connected right index and ring finger disabilities are more disabling than reflected by the currently assigned 10 percent rating. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial rating assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation-of-motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court interpreted these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995), and held that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. In accordance with this requirement, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation-of-motion diagnostic codes. See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran is currently rated under Diagnostic Codes (DC) 5299-5223. 38 C.F.R. § 4.71a, DCs 5299, 5223. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2013). Thus, the hyphenated diagnostic code in this case indicates that an unlisted disorder, under DC 5299, is the service-connected disorder, as there is no DC for finger fracture or tendon repair. Favorable ankylosis of two digits of one hand is, under DC 5223, is the residual condition. The Veteran is right-handed, so his right hand is considered his major extremity. See 38 C.F.R. § 4.69 (2013). The RO assigned a 10 percent initial rating for service-connected fracture of the right index finger and extensor tendon repair of the right ring finger. Under DC 5223, a 10 percent rating contemplates favorable ankylosis of the long and ring; long and little; or ring and little fingers of the major hand. A 20 percent rating is warranted for favorable ankylosis of index and long fingers; index and ring fingers; or index and little fingers; or for the thumb and any finger of the minor hand. A 30 percent rating contemplates favorable ankylosis of the thumb and any finger. 38 C.F.R. § 4.71a, DC 5223. In March 2005, the Veteran underwent a VA examination. The examiner noted that the Veteran had an extensor tendon rupture over the fourth (ring) finger. Although he was able to lift and grip without difficulty, he continued to experience a dull ache. The condition was static. The examiner also noted that the Veteran had a fracture to his right second (index) metacarpal in 1984 during a crush injury. He was unable to make a fist because of its limited motion. He denied any paresis and inability to grip, but believed his grip is slightly less strong when compared to his left hand. He denied any residual pain in his right index finger. Clinical examination showed that the ring and index fingers of the right hand were "slightly less" strong when compared to the left hand. The first metacarpal joint was only able to flex to 45 degrees without pain, while the left was able to flex to 90 degrees. Neurological examination of the hand was normal with the exception of very slight decreased sensation in the ring finger upon pinprick. The examiner diagnosed right hand status post extensor tendon rupture and repair, fourth (ring) finger with residual mild parethesia and mild decreased strength. She also diagnosed right second (index) metacarpal fracture with residual deformity and discomfort. In a May 2005 addendum note, she stated that the right hand and right first finger had no additional limitation with repetitive motion. Private medical records, dated in March 2006, reflect that the Veteran reported his right hand swells and hurts with prolonged activity. Clinical examination showed a full range of motion, except for the index finger which lacked 5 to 10 degrees full flexion. He exhibited full wrist motion. Swelling was limited to the little finger. Tenderness was not observed. X-rays confirmed arthritis in the finger joints. The examiner diagnosed traumatic arthritis involving the joints of the right hand, fingers, and wrist. He was given Celebrex and instruction on physical therapy exercises for his fingers. In an April 2006 follow-up visit, the Veteran reported general improvement with Celebrex. However, he continued to have increased pain and swelling in his right hand with activity. His also noticed increased symptoms during cold and damp weather. Clinical examination showed soreness on the index finger. Swelling was not observed. The examiner described the range of motion as satisfactory. He diagnosed traumatic arthritis of the right hand. In his July 2006 notice of disagreement, the Veteran detailed his in-service traumatic injuries to his fingers. He reported having swelling throughout his entire right hand. He corrected reports in the March 2005 VA examination. He clarified that he had daily discomfort, weakness, and an inability to grip in his right hand. It interfered with routine occupational and domestic tasks. In his January 2008 substantive appeal, the Veteran reported that he had medical evidence of arthritis in his right fingers and that his disability approximates the criteria for a 20 percent rating for involvement of both right index and ring fingers. VA reexamined the Veteran in January 2012. He reported having progressive symptoms of pain and limitation of motion since separation. He currently experienced daily pain in his right hand, which increased during overuse, cold weather, and unspecified activities. It was alleviated by rest, avoidance of certain activities, and medication. He denied any incapacitating episodes or flare-ups. Clinical examination showed the Veteran to be right hand dominant. He was able to oppose his thumb to all fingers with pain beginning at a gap of 2 inches (in). He had a gap greater than 1 inch (2.5 centimeters) for the right index finger and ring finger in finger flexion motion. Index finger had painful extension at more than 30 degrees. Repetitive testing did not further diminished motion. The examiner identified the functional loss as less movement, weakened movement, excess fatigability, and pain on movement. Tenderness or pain to palpation was found. The Veteran exhibited full muscle strength in his right hand. The examiner commented that ankylosis was not present. Although the Veteran had a surgical scar on his finger it was not painful, unstable, or greater than 6 square inches. The examiner stated that the Veteran's service connected finger disabilities were not functionally equivalent to amputation with use of prosthesis. X-rays did not show significant degenerative changes. The examiner diagnosed right finger fracture, laceration, and tendon laceration. The Veteran asserts that an initial rating in excess of 10 percent is warranted. As explained below, the Board finds the preponderance of the evidence to be against the claim, and it must be denied. The Veteran is service connected for both right index and ring fingers. He has exhibited limitation of motion for both fingers. However, he is not shown to have ankylosis in either finger. (See March 2005 and January 2012 VA examination report; March and April 2006 private medical records). Nonetheless, the RO choose to assign a rating by analogy to ankylosis. 38 C.F.R. § 4.27. Presumably, the reasoning behind the analogous rating is that a 10 percent rating is the maximum rating for limitation of motion of the digits. See 38 C.F.R. § 4.71a, DCs 5229, 5230. Notably, limitation of motion of the ring finger does not warrant a compensable rating. 38 C.F.R. § 4.71a, DC 5230. Under DC 5223 criteria, the next highest rating of 20 percent contemplates ankylosis in both index and ring fingers of one hand. 38 C.F.R. § 4.71a, DC 5223. The January 2012 VA examiner explicitly stated that the Veteran does not have ankylosis. The prior evidence of record does not indicate that the Veteran has ankylosis in either finger. The Veteran has demonstrated in multiple clinical settings that he is able to flex and extend both right index and ring fingers. The Board acknowledges his functional impairments of pain, weakened movement, and excess fatigability. DeLuca, supra.; 38 C.F.R. §§ 4.40, 4.45. However, these findings of functional impairment, alone, do not approximate ankylosis in either finger. Without evidence that the Veteran has ankylosis in either finger, the Board declines to award a 20 percent rating under DC 5223. 38 C.F.R. § 4.71a, DC 5223. An initial rating in excess of 10 percent for service connected residuals of a right index finger fracture and right ring finger extensor tendon repair is denied. Id.; 38 C.F.R. §§ 3.102, 4.7, 4.40. Extraschedular considerations 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 v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected right index and ring finger disabilities are fully contemplated by the rating criteria. Mittleider v. West, 11 Vet. App. 181 (1998). The symptoms include restricted motion, pain, swelling, and excess fatigability. The degree of disability exhibited for both fingers is contemplated by the rating schedule. It is not productive of frequent hospitalizations or marked interference with employment. The evidence does not suggest any extraordinary symptoms beyond what the schedular criteria contemplate. The assigned rating fully contemplates occupational interference from diminished use of the right index and ring fingers. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration of the Veteran's rating claim. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). Total disability rating based upon individual unemployability (TDIU) The Court has held that a Total Rating for Compensation Based on Individual Unemployability (TDIU) is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not asserted that he is unemployed due to any service connected disability. TDIU is not for further consideration at this time. ORDER A disability rating in excess of 10 percent for the residuals of a fracture of the right index finger and extensor tendon repair of the right ring finger is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs