Citation Nr: 1339804 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 06-00 431A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a skin disorder of the foot, to include tinea pedis. 2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to February 17, 2011, and in excess of 20 percent on and after February 17, 2011. 3. Entitlement to an initial rating in excess of 10 percent for residuals of a rupture of the extensor tendon of the distal phalanx of the right index finger with degenerative changes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. By its decision of April 2013, the Board granted service connection for hearing loss of the right ear and then remanded the combined issue of entitlement to an initial rating for hearing loss of each ear, now styled as bilateral hearing loss, as well as the claim for service connection for a skin disorder of the foot and for residuals of a ruptured tendon of the right index finger to the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. On remand, the AMC by its rating decision of April 2013 implemented the Board's grant of service connection for hearing loss of the right ear and assigned a 10 percent rating for bilateral hearing loss from August 23, 2004, and a 20 percent rating from February 17, 2011. Following the AMC's attempts to complete the other requested actions, this case has been returned to the Board for further consideration. The issues of the Veteran's entitlement to service connection for a skin disorder of the foot, to include tinea pedis, and to an initial rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDINGS OF FACT 1. Throughout the period in question, the residuals of an extensor tendon rupture of the distal phalanx of the right index finger include arthritic involvement with a gap of one inch or more between the fingertip and proximal transverse crease of the palm and limitation of finger extension with pain, weakness, and deformity but without any additional loss of motion following repetitive use. 2. Throughout the period in question, the residuals of an extensor tendon rupture of the distal phalanx of the right index finger include a finger contracture with deformity tantamount to ankylosis. 3. The schedular criteria are adequate for the evaluation of the resulting level of disablement of the right index finger. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 10 percent for residuals of a tendon rupture of the distal phalanx of the right index finger have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5229 (2013). 2. The criteria for the assignment of a separate initial rating of 10 percent, but none greater, on the basis of a contracture of the right index finger tantamount to ankylosis have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5225 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder, including that which is part of his virtual claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim(s). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Preliminary Matters As indicated above, the Board remanded this matter to the AMC in April 2013 so that additional development actions could be undertaken. The actions sought in 2013, as pertinent here, were to clarify the symptoms and manifestations attributable to the tendon rupture and to ascertain more clearly the existence and/or source of any finger ankylosis and numbness. This was accomplished by way of a further VA medical examination in June 2013, the report of which is of record. On that basis, the Board finds that substantial compliance with the terms of the 2013 remand was achieved. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). No further development actions are thus deemed necessary. Duties to Notify and Assist VA has 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 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the right index finger. Once service connection is granted the claim is substantiated, additional 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The record includes the Veteran's service treatment records, in addition to a various medical examination and treatment reports compiled during postservice years. It further includes the Veteran's many written statements, a statement from his spouse, and the transcript of a hearing before the Board, sitting at the RO, in February 2013. Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran has been afforded multiple VA examinations in reference to his claim for an initial rating for the disability at issue. Those evaluations entailed a complete review of the Veteran's VA claims folder, as well as a clinical examination and detailed medical history, followed by entry of medical findings and opinions, some of which were clarified by one or more addenda or subsequent examinations. In all, the reports provided as a result, inclusive of the findings and opinions therein, are found to be sufficiently detailed and predicated on a review of all the pertinent evidence so as to permit fair and equitable consideration of the merits of the issue presented. Id. On that basis, further development as to either of the issues herein addressed is not required. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. Merits of the Claim Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In this instance, service connection for residuals of a rupture of the extensor tendon of the distal phalanx of the right index finger with degenerative changes was established by rating action in May 2005. At that time, a 10 percent evaluation was assigned therefor under DC 5229 from August 23, 2004. No further change in the rating assigned was thereafter made, nor was any separate rating assigned. Under DC 5229, a noncompensable rating is warranted for limitation of motion of the index finger with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A 10 percent rating is warranted for limitation of motion of the index finger with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229. This is so for both the dominant and non-dominant hand. Motion of the thumb and fingers should be described by appropriate reference to the joints whose movement is limited, with a statement as to how near, in centimeters, the tip of the thumb can approximate the fingers, or how near the tips of the fingers can approximate the proximal transverse crease of palm. 38 C.F.R. § 4.71 (2013). Under DC 5225, a 10 percent rating is warranted for unfavorable or favorable ankylosis of the index finger. 38 C.F.R. § 4.71a, DC 5225. A note to DC 5225 provides that consideration should also be given to whether a rating as amputation is warranted and whether an additional rating is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Id. With respect to evaluation of ankylosis of the index finger: (i) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto. (ii) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position. (iii) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, evaluate as unfavorable ankylosis. (iv) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, evaluate as favorable ankylosis. In the rating action on appeal, the RO noted the Veteran's in-service history of a rupture of the extensor tendon at the insertion into the distal phalanx of the right index finger. The Veteran had transfixation of the joint of the distal phalanx with the phalanx. X-rays showed minimal degenerative arthrosis involving the second distal interphalangeal joint. The Veteran alleges that his tendon rupture of his right index finger is more disabling than is reflected by the previously assigned 10 percent rating under DC 5229. In written statements of record and/or hearing testimony, the Veteran and his wife have indicated that a greater level of disablement is present, citing the fact that the right index finger is held permanently in extension and that he cannot use it to perform simple tasks, such as holding a pencil, tying his shoes, or fastening a button. Pain and shaking of the right index finger are described. The oral and written testimony is found to be competent and credible, inasmuch as lay persons are competent to state what comes to them through their senses, particularly as to what is perceived and observed. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). That testimony is consistent, but not entirely so, with the objective findings identified during the applicable period and, to that extent, is found to be credible to a point. In this case, however, a preponderance of the evidence indicates that not more than a 10 percent rating is for assignment under DC 5229 on the basis of arthritis and associated limitation of motion. Clinical evaluation in June 2012 disclosed a gap of one inch or more between the fingertip and proximal transverse crease of the palm, thereby warranting a 10 percent evaluation under DC 5229. Nevertheless, it is noted that passive flexion of the right index finger joints was possible to 90 and 100 degrees, respectively, at that time. No higher evaluation is assignable on the basis of pain or functional loss under that DC. Notice is taken, however, that VA examinations in 2005, 2009, 2012, and 2013 have indicated that the Veteran's right index finger is fixed at approximately 20-22 degrees of extension/flexion, with medial deviation to 12 degrees, which depending on the VA examiner is attributed to ankylosis, contracture, fusion, or arthrosis. Some of the other accompanying findings include bony enlargement, deformity, and diminished grip strength, although related limitations of other fingers or overall function of the right hand are not consistently documented. The VA examiner in 2005 stated that grip strength of the right hand was reduced overall by the disability in question, but subsequent examinations noted either good function of the other hand joints or no collateral involvement, with grip strength in 2011 and 2013 being tested as normal at 5/5. Specific findings were also offered as part of the VA examinations in 2011 and 2013 that the disorder at issue did not result in limitation of motion of other digits or interfere with the overall function of the hand and that, while scarring was present, it was not painful and/or unstable or covering an area greater than 39 square centimeters. Notice, too, is taken that while a subjective complaint of numbness was noted on examination in 2011 which reportedly affected the Veteran over a 40-year career in the construction business, numbness was not clinically shown or referenced on re-examination in 2013. Also, it was determined in 2011 and 2013 that there was not a functional impairment present such that no effective function remained other than that which would be equally well served by amputation. See 38 C.F.R. § 4.71a, DC 5153 (greater than a 10 percent rating requires amputation of the index finger with metacarpal resection, or without metacarpal resection, with loss at the proximal interphalangeal joint or proximal thereto). A preponderance of the evidence is thus against a showing that the amputation rule warrants a rating in excess of 10 percent in this instance. Schedularly, not more than a 10 percent schedular evaluation is for assignment under DC 5229 on the basis of limitation of motion of the right index finger. That notwithstanding, the record supports the assignment of a separate 10 percent schedular rating on the basis of ankylosis or its equivalent by way of a contracture or fused joint of the right index finger under DC 5225. The Board finds that assigning separate ratings based on limitation of motion and ankylosis would not amount to pyramiding under 38 C.F.R. § 4.14. Here the key consideration has been met, in that limitation of motion of the index finger under DC 5229 and ankylosis under DC 5226 concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the finger. See Esteban, 6 Vet. App. at 259; 38 C.F.R. §§ 4.45, 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). No schedular rating in excess of those referenced is warranted and, while the Veteran is clearly impaired by the tendon rupture of his right index finger in completing many everyday tasks, the schedular criteria are not found to be inadequate for the rating of the involved symptoms and manifestations. Rather, the disability in question is fully accounted for under DCs 5225 and 5229 and no other symptoms or manifestations beyond those contemplated by those rating codes are presented. To that end, no extraschedular evaluation of increased disability is warranted under 38 C.F.R. § 3.321 and Thun v. Peake, 22 Vet. App. 111, 115 (2008). On the basis of the foregoing, the appeal is granted, in part, and denied, in part, as indicated for the entirety of the period at issue. Fenderson, supra. ORDER An initial rating in excess of 10 percent for residuals of a rupture of the extensor tendon of the distal phalanx of the right index finger involving degenerative arthritic changes and limitation of motion, is denied. A separate 10 percent rating for ankylosis or its equivalent of the right index finger as a result of the rupture of the extensor tendon of the distal phalanx, is granted, subject to those provisions governing the payment of monetary benefits. REMAND By its April 2013 remand, the Board directed the AMC to return the report of a private audiometric examination performed in August 2006 to the private medical provider for conversion of graphical information into numerical data and for clarification of whether the Maryland CNC speech discrimination test was utilized. The Board further instructed the AMC that if the private audiologist failed to respond, then the Veteran should be contacted for the purpose of having him obtain the needed information from the provider. On remand, no attempt by the AMC to contact the private audiologist was made. The record reflects that the only action of the AMC in that regard was to request that the Veteran provide the requested information, which he did not. Given the AMC's noncompliance with the remand directive, remand for corrective action is required. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). On remand, the Veteran was also to be afforded a VA skin examination in order to more clearly identify the existence of any skin disorder of his feet, to include tinea pedis. The Veteran previously had alleged that he was subject to jungle rot of his feet and legs while serving in Vietnam and, to date, service connection has only been established for tinea cruris affecting the groin. Service treatment records likewise denote evaluation and treatment of a plantar wart and callus. On remand, the Veteran underwent a VA skin evaluation in June 2013, at which the VA examiner determined that the Veteran did not then or ever have a skin disorder and yet the VA examiner reported that topical skin medication had been utilized for six weeks or more for tinea cruris (not herein on appeal) and tinea pedis. On the basis of that evaluation and review of the claims folder, the VA examiner concluded that it was less likely as not that the claimed condition was incurred in or caused by the claimed inservice injury, event, or illness. As a rationale, the VA examiner while citing to the inservice documentation of plantar warts and callus formation, indicated that there was no mention of tinea pedis in service and none shown at service discharge, and that without medical evidence of diagnosis and treatment of tinea pedis inservice, it was less likely as not that the inservice plantar wart/callus caused the current foot condition. Reference by the examiner to or consideration of the Veteran's credible account of a chronic skin disorder of the foot since service is not evident. The Board cannot proceed to adjudicate the merits of this issue until further clarification of the VA skin examination in June 2013 is obtained. The Board finds it inconsistent that that the VA examiner who found no current or former skin disorder of the Veteran was present also concluded that the inservice plantar warts and callus formation were unrelated to the current foot condition. At issue here is service connection for any skin disorder of either foot and it remains unclear whether any plantar wart, foot callus, tinea pedis, or other skin disorder of either foot is now present and, if so, whether it bears a nexus to military service. This must be done, as previously requested, with the assumption by the VA examiner that the Veteran's statements as to the existence of a chronic rash of one or more feet since service are credible. Remand for compliance with the Board's prior directives as to this is necessitated. Stegall, supra. Accordingly, this portion of the case is REMANDED for the following actions: 1. Obtain for inclusion in the claims folder any and all pertinent VA treatment records not already on file. 2. The August 2006 private audiometric examination should be sent back to the audiologist for clarification. The private audiologist should be asked to convert the graphical information into numerical data and to clarify if the Maryland CNC speech discrimination test was used in that examination. If the private audiologist fails to respond, contact the appellant and request that he obtain the information from the private audiologist. 3. Afford the Veteran a VA skin examination in order to ascertain more clearly the nature and etiology of any skin disorder of either foot. The claims file should be made available for review in conjunction with the examination. That examination should include a review of the Veteran's medical history and current complaints, as well as any and all clinical evaluations, studies, and tests deemed necessary by the examiner. All pertinent diagnoses should be fully outlined. If and only if such examination identifies current disability of the skin or either foot, then a professional opinion with full supporting rationale is needed as to the following: Is it at least at likely as not (50 percent or greater probability) that any diagnosed skin disorder of either foot originated in service or is otherwise attributable or etiologically related to the Veteran's period of military service? The VA examiner is to assume that the Veteran's complaints of a chronic skin rash of one or more of his feet since service are credible. The VA medical professional is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as against. More likely and as likely support the contended relationship; less likely weighs against the claim. 4. Lastly, readjudicate the appellate issues and if any benefit sought on appeal is not granted to the Veteran's satisfaction, then furnish to him a supplemental statement of the case and afford him a reasonable period in which to respond, prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs