Citation Nr: 1340355	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  11-33 171	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable rating for right 4th finger strain with Dupuytren's contracture.  



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Dan Brook, Counsel





INTRODUCTION

The Veteran served on active duty from September 1970 to May 1972.  

This appeal to the Board of Veterans' Appeals (Board) arises from a November 2010 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans' Affairs (VA).  The Veteran initially requested a Board hearing in conjunction with his claim, which was scheduled for September 2013.  However, through his representative, he subsequently cancelled the hearing.    


FINDING OF FACT

The Veteran's right 4th finger strain with Dupuytren's contracture is manifested by arthritis with decreased motion and pain.  


CONCLUSION OF LAW

The criteria for a 10 percent but no higher rating for right 4th finger strain with Dupuytren's contracture have been met.   38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.40, 4.45, 4.71a, Codes 5003, 5230 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).   Proper VCAA notice must inform the Veteran 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.  See 38 C.F.R. § 3.159(b)(1).

The Board notes that the instant claim for increase arose from the initial grant of service connection.  For initial rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Accordingly, VCAA notice pertaining to the Veteran's appeal of the initial rating assigned for right 4th finger strain with Dupuytren's contracture was not required.

With regard to the duty to assist, the claims file contains the service treatment records, the report of an August 2010 VA examination with an August 2010 X-ray finding and the assertions of the Veteran and his representative.  The Board finds that the August 2010 VA examination is sufficiently for rating purposes as the Veteran has not alleged any worsening of the right finger disability since then and there is no other evidence of record tending to indicate such worsening.  More broadly, the Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim.  No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim.


II.  Analysis

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; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The evaluation of the same disability under various diagnoses, known as pyramiding, is prohibited.  38 C.F.R. § 4.14.

A 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 has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim.  Consideration of the appropriateness of a staged rating is required.  See Hart v. Mansfield, 21 Vet. App. at 509-10 (2007).  The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran's right finger disability has not varied significantly during the appeal period.  

When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  However, although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application.  Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997).  Also, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

In the November 2010 rating decision, the RO granted service connection for right 4th finger strain with Dupuytren's contracture and assigned a noncompensable rating effective April 8, 2010.  The rating has been assigned under Diagnostic Code 5230, for limitation of motion of the ring finger.  Under this Code, a noncompensable rating is assigned for any limitation of motion of the ring or little finger.  38 C.F.R. § 4.71a.

The Veteran's right finger disability may also be considered under Diagnostic Code 5003.  Under this Code, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion.  In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  If there are no incapacitating exacerbations, a 10 percent rating is assigned.   38 C.F.R. § 4.71a.  

"Painful motion of a major joint...caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even though there is no actual limitation of motion."  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned should be entitled to at least the minimum compensable rating for the joint, therefore special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). 

The Veteran underwent a VA examination in August 2010, which assessed the nature and severity of his right finger disability.  The Veteran reported localized pain in the 4th (ring) finger, which occurred constantly.  He indicated that the pain was aching, sharp and cramping.  The pain could be exacerbated by physical activity and picking something up and was relieved by rest.  At the time of pain, the Veteran was able to function without medication and the Veteran was not receiving any treatment for his condition.  He reported that his overall functional impairment was decreased activity involving use of the right hand.  On examination, the Veteran could tie shoelaces, fasten buttons and pick up a piece of paper without difficulty.  Right hand strength was within normal limits and there was decreased range of motion of the 4th finger.  The examiner noted that there was evidence of Dupuytren's contracture affecting the 4th and 5th palmar hand on the right and that the Veteran's decreased range of motion of the 4th finger could be a result of this contracture.  The examiner found that the effect of the condition on the Veteran's usual occupation and daily activities was minimal.  An earlier August 2010 right hand X-ray had shown minimal to mild osteoarthritis, most prominent at the first metacarpal joint.   

As any amount of limitation of motion of the 4th finger still results in the assignment of a noncompensable rating under Code 5230, there is no basis for assigning a compensable rating for the Veteran's right 4th finger disability under this Code.  However, given that arthritis of the right hand, apparently including the 4th finger, was shown on the August 2010 X-ray; given that the Veteran does have limitation of motion of the finger; and given that he has affirmatively reported pain, a 10 percent rating is warranted for arthritis with painful motion under Code 5003.  38 C.F.R. § 4.71a.  The August 2010 right hand x-ray was interpreted as showing minimal to mild osteoarthritis, most prominent at the first metacarpal joint.  This suggests that arthritis was present throughout the right hand, but that it was most prominent in the thumb.  There can be no basis for assigning a rating in excess of 10 percent as only one service-connected joint is involved.  Id. 

The Board notes that the Veteran's service-connected disability includes Dupuytren's contracture, involving both the 4th and 5th finger.  However, specific fifth finger pain, limitation of motion or incapacitating exacerbations is not shown in the instant case, nor has the Veteran alleged such impairment.  Also, even if the Veteran were shown to have painful motion in this finger due to Dupuytren's contracture, this would only amount to painful motion in minor joints of the same group, thus still warranting assignment of a total 10 percent rating.  Id., 38 C.F.R. § 4.45 (f).    

Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated.  38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995).  Notably, the August 2010 VA examiner specifically found that the Veteran could perform fine motor movements with his right hand without difficulty, including  tying shoelaces, fastening buttons and picking up a piece of paper and also more generally found that the right finger disability had a minimal effect on the Veteran's usual occupation and daily activity.  Given these objective findings of minimal functional loss, and the lack of any other findings indicating more significant functional loss, assignment of a rating in excess of 10 percent for such loss is not warranted. 

The Board has also considered whether the Veteran's claim for increase for right finger disability should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted.  As explained above, the Veteran's symptomatology, including pain and limitation of motion, is fully contemplated by the pertinent diagnostic criteria.  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.  See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). 


ORDER

A 10 percent but no higher rating for right 4th finger strain with Dupuytren's contracture is granted subject to the regulations governing the payment of monetary awards.
 


____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs