Citation Nr: 1430645 Decision Date: 07/08/14 Archive Date: 07/15/14 DOCKET NO. 08-28 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to an initial compensable disability rating for residuals of fracture of the left fifth finger. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty for training from January to May 1987, from October 2001 to May 2002 under Title 32 orders, and on active duty under Title 10 from October 2003 to February 2005. This matter comes before the Board of Veterans' Appeals on appeal from June 2007 and October 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In the June 2007 decision, the RO denied the Veteran's claim for service connection for bilateral carpal tunnel syndrome. In the October 2007 rating decision, the RO granted service connection for residuals of fracture of the left fifth finger, assigning an initial noncompensable disability rating. The Board subsequently remanded the case in May 2012 for further evidentiary development and adjudication. The Board instructed the agency of original jurisdiction (AOJ) to seek to obtain relevant records, provide the Veteran with a VA examination, and then re-adjudicate the claims. The AOJ obtained the necessary records and scheduled the Veteran for VA examination, which the Veteran twice rescheduled before failing to report without good cause, as discussed in more detail below. The Veteran was then provided a supplemental statement of the case (SSOC) in May 2013, in which the AOJ again denied the Veteran's claims. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran's carpal tunnel syndrome is not shown to be related to military service or an event of service origin. 2. The Veteran's service-connected residuals of fracture of the left hand fifth finger are manifested by symptoms of pain, sensitivity, and weakness with some limitation of motion and loss of sensation. CONCLUSIONS OF LAW 1. The Veteran does not have right or left carpal tunnel syndrome that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The criteria for an initial compensable rating for service-connected residuals of fracture of the left fifth finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5227, 5230 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). Here, the Board finds that all notification and development action needed to arrive at a decision on the claims on appeal has been accomplished. In this respect, through April 2007 and March 2008 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claims. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board also finds that the April 2007 and March 2008 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned April 2007 and March 2008 letters. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the April 2007 and March 2008 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the April 2007 and March 2008 letters. The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant. If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the Veteran's claim for a higher initial rating falls squarely within this pattern. Thus, no additional VCAA notice was required with respect to the claim for increase for his service-connected left fifth finger disability. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. The Veteran's service treatment records, as well as records of his post-service treatment, have been associated with the claims file. In addition, regarding his claim for increase, the Veteran was afforded VA examination in September 2007; report of that examination is of record. In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, as to the Veteran's claim for increase, the Board finds that the VA examination obtained in this case is adequate, as it is predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and document that the examiner conducted full physical examination of the Veteran. Although more current findings were sought by the Board when it remanded the case, the Veteran did not appear for the examination, and he provided no reason for his failure to appear, which means that the Board must rely on the available record to rate this original claim. 38 C.F.R. § 3.655 (2013). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the rating claim has been met. 38 C.F.R. § 3.159(c)(4). Further, regarding the Veteran's service connection claim, pursuant to the Board's May 2012 remand, the Veteran was scheduled for additional VA examination in December 2012, which he twice rescheduled. Although the Veteran obtained a final scheduling for May 2013, he failed to report to that scheduled examination and has not provided good cause for his failure to report. See 38 C.F.R. § 3.655 (2013) (when entitlement to the benefit sought cannot be granted without an examination, and the claimant fails to appear without good cause, an original claim shall be rated based on the evidence of record). The Veteran has further been given the opportunity to submit evidence, and he and his representative have provided written argument in support of his claims. The Veteran has not identified, and the record does not indicate, existing records pertinent to these claims that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis A. Service Connection Claim Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The Veteran contends that he has carpal tunnel syndrome that he believes began while he was on active duty or is otherwise etiologically linked to his time in service. Service treatment records are silent as to any complaints of or diagnosis of carpal tunnel syndrome. To the contrary, no abnormalities of the neurological system or bilateral upper extremities were noted at the Veteran's February 2005 separation medical assessment. Tellingly, the Veteran's February 2005 post-deployment assessment-completed the same month he separated from active duty-reflects that the Veteran responded "No" when asked if he experienced numbness or tingling in his hands. Post-service treatment records reflect that the Veteran has been seen on multiple occasions since service for complaints of pain and numbness in his upper extremities. He was diagnosed with carpal tunnel syndrome on the right at a December 2005 EMG study and underwent surgery in May 2007. He was similarly diagnosed with "nerve entrapment" of the left upper extremity in November 2005 and with left carpal tunnel syndrome via a January 2007 EMG study. The Veteran has also submitted statements in which he contends that he first developed symptoms of carpal tunnel syndrome while holding his rifle "at the ready" during service, which he stated in his February 2008 notice of disagreement led to numbness in his wrists bilaterally. Upon review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for right or left carpal tunnel syndrome. In so finding, the Board notes first that, despite his later contentions, the Veteran's service treatment records are completely silent as to complaints of or treatment for any problems with pain or numbness in the upper extremities. His February 2005 separation medical assessment found no abnormalities of the upper extremities, and he specifically denied experiencing pain or numbness in his hands at a February 2005 post-deployment medical evaluation. The Board concedes that the Veteran's treatment records confirm a current bilateral carpal tunnel syndrome, but concludes that there is no competent medical evidence relating that disorder to service. Even accepting the Veteran's complaint that his wrists were occasionally numb following holding his rifle during service, the Board notes that no complaints or findings of chronic wrist or upper extremity disability were noted at the time of the Veteran's separation medical examination in February 2005. When examined for separation from service, the Veteran was found to have a normal neurological system, and no problems with his upper extremities were noted. This evidence leads the Board to conclude that the Veteran's statements regarding continued problems since service are not credible. (His statements made at separation when being examined in the medical setting appear more reliable than those now made in the context of a claim for monetary benefits.) In concluding that the Veteran's current carpal tunnel syndrome is not related to his time in service, the Board looks in particular to the Veteran's February 2005 separation examination, at which his neurological system and upper extremities were found to be normal. Also compelling is the February 2005 post-deployment medical evaluation, at which the Veteran specifically denied experiencing any pain or numbness in his upper extremities. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between service and the Veteran's current carpal tunnel syndrome. In that connection, the Board notes that the Veteran's treatment providers, although acknowledging the Veteran's report of in-service symptoms, have not established any etiological link between his time in service and his current carpal tunnel syndrome. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service and his current carpal tunnel syndrome. The Board sought further medical opinion evidence in this case. In that regard, the Court has emphasized that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); see also Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). In this instance, the duty to assist has been frustrated by the Veteran's failure to report for a VA examination needed to produce evidence essential to his claim for service connection. If the Veteran believes he is entitled to service connection for carpal tunnel syndrome, he must at least fulfill his minimal obligation of reporting for a VA medical examination when it is scheduled. As already noted, when entitlement to an original compensation claim cannot be established without a VA examination and a claimant, without good cause, fails to report for such an examination, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. As discussed above, and because the Veteran's statements of continuity are not credible, there is simply no evidence of record to support a finding that the Veteran's carpal tunnel syndrome is traceable to his active military service. As the Veteran has failed to report to a VA examination without showing good cause, and without any medical evidence to support his claim of nexus, the Board has no alternative but to deny the Veteran's claim for service connection. See Kowalski, 19 Vet. App. at 176 (holding that appellant's refusal to undergo a VA examination was addressed appropriately by 38 C.F.R. § 3.655(b)). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for right or left carpal tunnel syndrome. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Higher Rating Claim The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). Where, as here, however, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. 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). 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). See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (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). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. The Veteran has been assigned an initial noncompensable rating for residuals of fracture of the left fifth finger. Relevant medical evidence of record consists of a VA medical examination conducted in September 2007. At that time, the Veteran reported that he fractured his left fifth finger in service and had since been unable to make a full fist. The Veteran also complained that the finger was very sensitive to being bumped or struck and stated that he was having problems playing guitar and engaging in work. He stated that if the finger bothered him too much he would tape it to his left ring finger for stabilization. Physical examination found the left fifth finger to have some sensitivity to palpation. Range of motion was flexion of the MCP joint to 90 degrees, of the PIP joint to 60 degrees, and of the DIP joint to 30 degrees, with decreased strength in the finger and decreased sensation to sharpness of touch. The examiner noted gaps between the finger and the transverse and proximal creases of the palm. Radiological study revealed "slight deformity ... compatible with a healed fracture" of the left fifth finger but was otherwise normal. The examiner diagnosed the Veteran with status post fracture of the left fifth finger with deformity, loss of range of motion, and decreased sensation. Under Diagnostic Code 5227, favorable or unfavorable ankylosis of the little finger warrants a noncompensable rating. Similarly, under Diagnostic Code 5230, any limitation of motion of the little finger warrants a noncompensable rating. The Board notes that no ankylosis has been shown in the Veteran's left fifth finger. Further, although some limitation of motion has been shown, Diagnostic Code 5230 accounts for "any limitation of motion" in the noncompensable rating currently assigned. Thus, the Board concludes that the Veteran is currently rated at the maximum available rating under either Diagnostic Code 5227 or Diagnostic Code 5230, and no higher rating is available under either Diagnostic Code. The Board has also considered whether the Veteran's service- connected residuals of fracture of the left fifth finger would warrant a higher rating under any other Diagnostic Code. Arthritis may affect joints near fracture sites; however, the Board notes that the medical evidence does not reveal that the Veteran has been radiologically diagnosed with arthritis at any time. Without such a diagnosis, Diagnostic Codes 5010 and 5003 are not for application. Similarly, although the Veteran's representative contended in a May 2012 statement that the Veteran's finger disorder warrants separate ratings for both sensory impairment and muscle weakness, no such separate disorder was diagnosed at the September 2007 VA examination; nor is there any evidence of such a diagnosis at any point during the appeal period. Thus, separate ratings for muscle weakness or sensory impairment are not warranted. (The Board sought evidence on this point when it remanded the case for an examination in 2012, but the Board must now rate based on the available record because of the Veteran's failure to appear. 38 C.F.R. § 3.655.) In this case, the Board finds that Veteran's residuals of fracture of the left fifth finger are manifested by complaints of pain, sensitivity, and weakness with some limitation of motion and loss of sensation, with no findings of ankylosis or radiological findings of arthritis or sensory impairment. These symptoms do not meet the criteria for a compensable rating. The Board has considered the Veteran's contentions with regard to his claim for a higher rating for his residuals of fracture of the left fifth finger. Although the Board does not doubt the sincerity of the Veteran's belief that his disability is more severely disabling than reflected in the current rating, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The statements from the Veteran clearly articulate the symptoms and troubles he experiences; however, even with consideration of those problems, the Board finds that a higher rating is not warranted under the pertinent criteria for the left fifth finger disability on appeal. The above determination is based on consideration of the applicable provisions of VA' s rating schedule. The Board finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected left fifth finger disorder-without consideration of other disabilities-has rendered impractical the application of the regular schedular standards. The Veteran himself has stated, at his September 2007 VA examination and in later written statements, that he continues to maintain full-time employment. No hospitalization for his service-connected left fifth finger disorder has been reported at any time during the appeal period. Furthermore, all of the objective manifestations of the disability have been considered and are contemplated by the criteria discussed above. See Mittleider v. West, 11 Vet. App. 181 (1998). (The provisions of 38 C.F.R. § 3.655 also mandate that the case be rated on the record when the Veteran fails to appear for examination without good cause.) Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that an initial compensable disability rating for residuals of fracture of the left fifth finger is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5227, 5230 (2013). This is so for the entirety of the claim period. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for right or left carpal tunnel syndrome is denied. Entitlement to an initial compensable disability rating for residuals of fracture of the left fifth finger is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs