Citation Nr: 1342545 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 08-14 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an umbilical hernia. 2. Entitlement to an initial compensable disability rating for residuals of a laceration of the left hand, to include both limitation of motion and scarring. 3. Entitlement to an extraschedular rating for residuals of a laceration of the left hand, to include both limitation of motion and scarring. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1978 to November 1981, and from December 1990 to May 1991, and additional periods of active duty for training (ACDUTRA) including in June 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The claims are currently in the jurisdiction of the Montgomery, Alabama RO. In October 2008, the Veteran appeared at a hearing at the Jackson, Mississippi RO before a Decision Review Officer. A transcript of that hearing is in the claims file. This case was previously before the Board in March 2013, when it was remanded for further development, to include obtaining additional records and affording the Veteran a VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The claim for a compensable disability rating for residuals of a left hand laceration on an extraschedular basis is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran's umbilical hernia was diagnosed during active service. 2. Throughout the appeals period, the Veteran's residuals of a left hand laceration have been manifested by minimal limitation of extension of the index finger, painful motion of the thumb and index finger, and a non-painful, stable linear scar of less than 6 inches. CONCLUSIONS OF LAW 1. The criteria for service connection for an umbilical hernia have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for a schedular compensable disability rating for residuals of a left hand laceration have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5228 and 5529, 4.118, Diagnostic Code 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA applies to the instant claim. However, inasmuch as this decision grants service connection for an umbilical hernia, there is no reason to belabor the impact of the VCAA on that claim; any notice error or duty to assist failure as to this claim is harmless. With respect to the claim for an increased disability rating, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claim for residuals of left hand laceration arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. As the service connection claim is being awarded, there is no need to discuss VA's duty to notify as to that issue on appeal. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder, as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an October 2008 hearing before the Decision Review Officer. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. In compliance with the Board's May 2013 remand, VA provided the Veteran with a medical examination in July 2013. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the March 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Facts and Analysis The record shows that the Veteran was first diagnosed with an umbilical hernia while on a period of ACDUTRA in June 2003. The July 2013 VA examination showed that he currently has a hernia, which the examiner related to service. Inasmuch as the condition diagnosed in service is still present and affording the Veteran the benefit-of-the-doubt, service connection for an umbilical hernia is warranted. 38 U.S.C.A. § 5107(b). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Impairments of the hand are rated under 38 C.F.R. § 4.71a, to include provisions for arthritis (Diagnostic Code 5010, discussed below), limitation of motion of the wrist, and limitation of motion of one or more fingers. Preliminarily, the Board notes that the Veteran does not have ankylosis (frozen joints), whether favorable or unfavorable, and the rating criteria for ankylosis are therefore not applicable. Limitation of motion of the individual fingers is evaluated under Diagnostic Codes 5228 (thumb), 5229 (index or long finger), and 5230 (ring or little finger). Under Diagnostic Code 5228, a noncompensable rating is warranted for limitation of motion with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent evaluation is warranted for limitation of motion of the thumb, with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and, a maximum 20 percent evaluation is warranted for limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. Under Diagnostic Code 5229, a noncompensable rating is warranted for limitation of motion 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; or for extension limited by no more than 30 degrees. A maximum 10 percent evaluation is warranted for limitation of motion of the index finger, with a gap of one to two inches between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible; or for extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. In addition, Note (5) regarding ankylosis or limitation of motion of the fingers specifies that if there is limitation of motion of two or more digits, each digit should be evaluated separately and the evaluations should be combined. 38 C.F.R. § 4.71a. Another potentially provision to consider is Diagnostic Code 5010, which provides that arthritis due to trauma substantiated by X-ray findings is rated under Diagnostic Code 5003 as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint that is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each such major joint affected by limitation of motion is assigned. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 should be considered. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The rating criteria pertaining to scars are set forth in 38 C.F.R. § 4.118. The schedular criteria by which skin disabilities are rated, including scars, were revised, effective October 23, 2008. 73 Fed. Reg. 54,708-54,712 (September 23, 2008). These modifications were expressly made applicable only to claims filed on or after the effective date, or upon request of the Veteran. Here, the Veteran's claim was received in August 2006, and he has not requested consideration under the amended regulations; as such, they are not applicable to the instant claim. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck that are deep and nonlinear. Scars that are deep and occupy an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Note (2) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck that are superficial and do not cause limitation of motion. Superficial scars that occupy an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (2) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under Diagnostic Code 7803, superficial and unstable scars warrant a 10 percent evaluation. Note (1) to that code section indicates that an unstable scar is one not associated with underlying soft tissue damage. Finally, Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Facts and Analysis The Veteran is currently service connected for residuals of the laceration of his left hand, with noncompensable ratings assigned based on limitation of motion and scarring. To afford the Veteran the widest possible scope for his appeal, entitlement to an increase in both disability ratings is addressed below. On a June 2007 VA examination the Veteran reported pain at site of laceration, aggravated by cold. There was no impact on his job as a truck driver and no restriction on doing chores at home. Physical examination showed a 3-inch scar on the dorsum of the left hand near the thumb that was hyperpigmented, well-healed, smooth, flat, and stable. There was no adherence or abnormal texture. The scar was not painful on examination, although the Veteran reported that it was painful on gripping. On the November 2008 VA examination, the Veteran reported pain and weakness of his left hand, aggravated by the cold. His scar did not impact his employment as a mechanic and had not restricted him from doing chores at home. Physical examination was consistent with that in June 2007, with the examiner also noting no limitation of motion, muscle loss, or disfigurement. Again, the Veteran reported pain when gripping, but the scar was not painful on examination. On the July 2013 VA examination, the laceration to the left hand in service was noted. The Veteran reported flare-ups in pain which impacted function as a result of twisting, turning, pushing, and pulling. There was limitation of motion and/or painful motion in the Veteran's left index finger, but no gap between the thumb and fingertips or between the fingertips and the proximal transverse crease of the palm and no evidence of impairment of extension. Physical examination showed less movement than normal in the left thumb and pain on movement in the left thumb and index finger. There was also pain on palpation of the left finger and thumb, but the grip strength was equal in right and left hands and there was no evidence of ankylosis in his left hand. The Veteran's scar was not painful or unstable and did not exceed 6 square inches in size. X-rays showed no abnormal findings such as fracture, dislocation, surgical intervention, or arthritis. Range of motion testing of the left thumb showed a 5 degree limitation of motion on repetitive testing on palmar abduction and mp, due to pain and weakness. The Veteran's left index finger lacked 10 degrees from neutral extension, and on repetitive movement was lacking 15 degrees due to weakness. The examiner noted that the Veteran's current thumb and finger condition may likely mildly impact physical and sedentary labor secondary to fatigue and lack of coordination. Based on the VA examination reports and the Veteran's own description of the effects of his left hand laceration, the Board finds that the currently assigned noncompensable disability rating for limitation of motion is appropriate. The VA examination reports do show an increased disability in the left index finger in particular over time, but the current disability picture related to both the left thumb and left index finger does not warrant a compensable rating for either. Specifically, the Board notes that, while the most recent VA examination in July 2013 shows a loss of full extension in the index finger, that loss is at most 15 degrees, rather than the 30 degrees or more required for a 10 percent disability rating. He does not have a gap between the thumb and finger pad or between the finger pad and the palmar crease, let alone a gap of such significance as to warrant a 10 percent disability rating for either thumb or index finger on a schedular basis. In addition, X-rays do not show evidence of arthritis as required for a rating for noncompensable limitation of motion under Diagnostic Code 5003. With respect to the Veteran's scar from the laceration of his left hand, the evidence of record similarly does not support entitlement to a compensable disability rating. Specifically, a compensable rating would require either a larger scar (one at least twice the size on the Veteran's hand), instability, painfulness to palpation, or deep scarring. None of these symptoms has been manifested and a schedular compensable disability rating for scars is not warranted. Again, while the Veteran has reported pain with gripping, this pain does not describe the scar but his hand in general. Again, on objective testing the scar was consistently not tender to palpation. The preponderance of the evidence is against the Veteran's claim for an increased schedular disability rating. As discussed in the Remand portion below, the question of entitlement to an increased disability rating on an extraschedular basis, to include consideration of the functional limitations resulting from the disability, must be considered separately. ORDER Entitlement to service connection for an umbilical hernia is granted, subject to the laws and provisions governing the award of monetary benefits. Entitlement to a compensable schedular evaluation for residuals of a left hand laceration, to include limitation of motion and scarring, is denied. REMAND The decision above denies entitlement to a compensable disability rating for residuals of left hand laceration on a schedular basis. However, because of the evidence reflecting resulting functional limitations, separate consideration must be given to the question of entitlement to additional compensation on an extraschedular basis. Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Board finds that the rating criteria do not reasonably describe the Veteran's disability levels and symptomatology resulting from his left hand lacerations. Specifically, while the Veteran has loss of motion in his hand, which is worsened by repetitive use and by fatigue, to the point where his ability to perform both active and sedentary labor is at least mildly compromised, these limitations are not encompassed in the disability ratings. Rather, the applicable disability ratings apply only where there is profound loss of motion or where the limitation of motion is due to arthritis demonstrated on X-ray. As such, the Board finds that referral for extraschedular consideration is required under 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: 1. Refer the claim for entitlement to a compensable disability rating for residuals of a left hand laceration to the VA Director of the Compensation and Pension Service for an extraschedular consideration under 38 C.F.R. § 3.321(b). 2. After the referral for extraschedular consideration is returned, adjudicate the claim. If benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs