Citation Nr: 1514723 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 13-06 177A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for residuals of gunshot wound, 1st web space of the left hand. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 11, 2014. 3. Entitlement to service connection for glaucoma/cataracts, bilateral eyes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 and November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO issued an April 2014 rating decision in which it denied service connection for glaucoma/cataracts, bilateral eyes. The Veteran filed a timely notice of disagreement in May 2014. The RO has yet to issue a statement of the case in response to the Veteran's notice of disagreement so the Board has jurisdiction over the claim as to that aspect. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2015. The issue of service connection for glaucoma/cataracts, bilateral eyes is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction. FINDINGS OF FACT 1. The Veteran's residuals of a gunshot wound of the left hand are manifested by limitation of motion of the fingers and thumb, but not limitation of motion of the thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 2. Prior to December 11, 2014, the Veteran had the following service-connected disabilities, all arising from combat action: residuals of gunshot wound, 1st web space of the left hand rated as 10 percent disabling; left radial nerve injury associated with residuals of gunshot wound, 1st web space of the left hand rated as 20 percent disabling; and PTSD rated as 50 percent disabling. 3. Prior to December 11, 2014, and effective from January 1, 2013, the evidence of record is in relative equipoise as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a gunshot wound of the left hand have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.73, Diagnostic Code 5309 (2014). 2. Prior to December 11, 2014, the criteria for a TDIU are met from January 1, 2014. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3,102, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). A standard August 2012 letter satisfied the duty to notify for the gunshot wound rating claim and the TDIU claim. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA treatment records have also been obtained. The Veteran was provided VA medical examinations in August 2012. The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claims. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain a reasoned explanation. Thus, VA's duty to assist has been met. II. Analysis Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2014); see also 38 C.F.R. §§ 4.45, 4.59 (2014). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection for residuals of a gunshot wound of the left hand was originally granted in a July 1988 rating decision and assigned as 10 percent disabling pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5309 (2014), which rates Muscle Group IX. In addition, the Veteran is in receipt of a separate 20 percent rating for left radial nerve injury, associated with a gunshot wound in the 1st web space on the left hand. Generally, muscle group damage is categorized as slight, moderate, moderately severe or severe and evaluated accordingly under 38 C.F.R. § 4.56 (2014). With respect to Diagnostic Code 5309, however, different criteria apply. As indicated in that code, Muscle Group IX consists of the intrinsic muscles of hand, the thenar eminence, short flexor, opponens, abductor and adductor of the thumb, the hypothenar eminence, and the short flexor, opponens and abductor of the little finger. The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Thus, injury to Muscle Group IX should be rated on limitation of motion, with a minimum 10 percent assigned. 38 C.F.R. § 4.73, Diagnostic Code 5309, Note. The rating criteria for limitation of motion of individual digits are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5228-5230 (2014). The regulations provide that if there is limitation of motion of two or more digits, each digit should be evaluated separately and the evaluation should be combined. See preamble to 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230 at Note (5). Diagnostic Code 5228 provides that a noncompensable evaluation will be assigned for limitation of motion of the thumb with a gap of less than one inch (2.5 cm.) (centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating will be assigned for limitation of motion of the thumb with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating will be assigned for limitation of motion of the thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Diagnostic Code 5229 provides that a noncompensable evaluation will be assigned for limitation of motion of the index or long 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 or long 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. Diagnostic Code 5230 provides that a noncompensable evaluation will be assigned for any limitation of motion of the ring or little finger. The ratings described above are for application regardless of the dominant hand. The Veteran was afforded a VA hand and finger examination in August 2012. It was noted that the Veteran's dominant hand was his right. Flare-ups, which were reported to worsen in wet weather, were noted. Upon examination, there was no limitation of motion or evidence of painful motion for any fingers or thumb. The Veteran was able to perform repetitive motion. No additional limitation of motion was found for any fingers after repetition. There was no gap between the thumb pad and the fingers and no gap between any fingertips and the proximal transverse crease of the palm found. No limitation of extension for the index finger or long finger was reported. The Veteran did have functional loss or functional impairment of his fingers or thumb. Less movement than normal and weakened movement for the thumb and index finger were reported. Although the examination report shows that these impairments were reported for the right hand, it is noted that, overall, the right hand thumb and fingers had no functional loss and the VA examiner indicated that only the left had was tested for the examination. Therefore, functional loss will be reviewed as pertaining to the left hand. There was no tenderness or pain to palpation for joints or soft tissue noted. The Veteran's hand grip was measured a 3/5. No ankylosis of the thumb or fingers was found. A scar was reported. The scar was not painful and or unstable, or was greater than 39 cm in area. No abnormal findings or no significant osseous abnormalities were identified upon image testing. The Veteran's hand, thumb and finger disability did not impact his ability to work. He was found to be medically capable of light physical or sedentary employment. The Veteran was also afforded a VA peripheral nerve examination in August 2012. The Veteran was diagnosed with a peripheral nerve condition. Mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias and moderate numbness were reported. Elbow and wrist flexion were 5/5. The Veteran's grip and pinch were 2/5. Mild hand atrophy at the palm was noted. Bicep, triceps and brachioradialis tests were normal. Decreased hand/finger sensations for light touch were noted. Phalen's signs and Tinel signs were negative. Moderate, incomplete paralysis of the radial nerve was noted. At the Veteran's January 2015 Board hearing, he stated that he took pain pills to relieve the pain he felt in his left hand. He noted that when he was employed, he experienced pain, described as "bad," when he tried to pull things of a truck. It was not easy for him to turn the steering wheel of the truck he was driving and had difficulty pulling the pallets off the back of his truck. His hand would cramp up and he would lack grip strength. He noted that he would pull his fingers and "pop them back up" when his hand cramped up. He noted that he had a scar, which was not painful. After a review of the record, the Board finds that the preponderance of the evidence of record is against an evaluation in excess of 10 percent for the Veteran's residuals of a gunshot wound of the left hand. The Board acknowledges the Veteran's assertions regarding the symptomatology associated with his left hand and finds that he is competent to make such assertions and that his assertions are seemingly credible. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). As noted above, however, Diagnostic Code 5309 directs the rater to assign a minimum 10 percent evaluation and rate the disability based on limitation of motion. The August 2012 VA examination report reveals no limitation of motion or evidence of painful motion for any fingers or thumbs. No additional limitation of motion was found for any fingers after repetition. Further, no gaps between the thumb pad and the fingers or between any fingertips and the proximal transverse crease of the palm were found. No limitation of extension for the index finger or long finger was reported. The Veteran is in receipt of a rating higher than the noncompensable evaluation assigned under Diagnostic Code 5230 for any limitation of motion for his ring or little fingers. He is also already in receipt of the maximum rating allowed under Diagnostic Code 5229 for limitation of motion for his index or long fingers. In addition, there is no evidence that the Veteran exhibited limitation of motion of the left hand thumb with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers to warrant the assignment of a 20 percent rating under Diagnostic Code 5228. The Board has considered the other diagnostic criteria related to the fingers to determine whether an increased rating, or additional separate compensable rating, is warranted for the left hand disability under these provisions. These diagnostic codes, however, are simply not applicable to the Veteran's service-connected residuals of a gunshot wound of the left hand as there is no evidence of unfavorable or favorable ankylosis affecting individual or multiple digits. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5227. Consideration has been given to whether a rating in excess of 10 percent is warranted for the service-connected residuals of a gunshot wound of the left hand on the basis of functional impairment and pain. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-06. The Board acknowledges the Veteran's reports of pain, cramping and problems with grip. It also acknowledges the objective evidence of less movement than normal and weakened movement. In addition, the August 2012 examiner reported that the Veteran was able to perform repetitive-use testing with three repetitions and without additional limitation of motion for any fingers post-test. Based on the foregoing, the Board finds that a rating in excess of 10 percent on the basis of limitation of function due to pain is not warranted for the Veteran's left hand disability under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca. See Mitchell, 25 Vet. App. at 38-43 (limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded). Neurological manifestations associated with his service-connected left hand disability may be separately rated under an appropriate diagnostic code (and such rating is then combined with the rating under the General Formula, addressed above). A separate rating of 20 percent is already assigned for a left radial nerve injury, associated with a gunshot wound in the 1st web space on the left hand. The August 2012 VA examination report reflects moderate incomplete paralysis. No other neurologic abnormality was found on the left upper extremity. The Veteran has not appealed the 10 percent rating assigned and there is no medical evidence demonstrating a higher rating is warranted. Lastly, the Board has considered whether separate ratings are warranted for the scars associated with the Veteran's service-connected left hand disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). The August 2012 examiner noted a left hand scar. It was noted as not painful and/or unstable and the total area of all related scars was not greater than 39 square cm. (6 square inches). In his January 2015 hearing, the Veteran stated that his scar did not hurt. As such a separate rating for a scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2014). The evidence shows that the Veteran's service-connected residuals of gunshot wound, 1st web space of the left hand results in pain and decreased range of motion (along with nerve impairment and a scar not causing impairment); the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected left hand disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2014). For the foregoing reasons, the Board finds that the claim for a rating in excess of 10 percent for the left hand gunshot wound must be denied. 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 Veteran's claim for an increase, 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). TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. Preliminarily, effective December 11, 2014, the Veteran's combined rating is 100 percent. Also, a 100 percent rating was assigned for PTSD from that date. The Board notes that a TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16(a). Because VA determined that the Veteran's combined rating for his service-connected disabilities is 100 percent beginning on December 11, 2014, and because the evidence does not show that a TDIU is warranted based only on one of the left hand disabilities, the claim for a TDIU during that timeframe is rendered moot. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2014). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a) (2014). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher. 38 C.F.R. § 4.16(a) (2014). If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). Prior to December 11, 2014, the Veteran was service-connected for: residuals of gunshot wound, 1st web space of the left hand rated as 10 percent disabling; left radial nerve injury associated with residuals of gunshot wound, 1st web space of the left hand rated as 20 percent disabling; and PTSD rated as 50 percent disabling. His combined rating was 60 percent. See 38 C.F.R. § 4.25 (2014). The record reveals that the Veteran's service-connected disabilities are consistent with the places, types, and circumstances of the Veteran's combat duty and are sufficient to be accepted as multiple injuries incurred in action. As these disabilities arose from injuries sustained in combat action in Vietnam, they may be considered as one disability rated at 60 percent disabling, thereby satisfying the schedular requirements for consideration of a TDIU rating under 38 C.F.R. § 4.16(a)(4). Thus, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). The Veteran was afforded a VA general medical examination in August 2012. The examiner noted that the Veteran was medically capable of light physical or sedentary employment. The Veteran was also afforded a VA PSTD examination in August 2012. It was noted that the Veteran had worked as a truck driver for 30 years and had retired in January 2012 due to hand problems. The examiner noted that the Veteran's PTSD disability was moderately impairing with regard to psychosocial functioning. The Veteran was not considered unemployable at that time, due to his PTSD symptoms alone. At the Veteran's January 2015 videoconference hearing, he stated that his hand impacted his ability to work. He had difficulty pulling anything off a truck, due to the pain in his hand. He also stated that "some stuff would set me off" and that he would "holler" at people. He had difficulty dealing with others in the warehouses. He noted that he had worked as a sales representative and tried to sell cars, but that he mostly worked as a truck driver. He stated that being a truck driver was "probably the best thing," because he could be on his own. He reported that he had attended high school and "a little college." Thus, the VA examiners concluded that the Veteran could perform light physical or sedentary employment due to his left hand disability and was not considered unemployable solely due to his PTSD disability. Additionally, the evidence of record indicates that the Veteran was employed a truck driver for 30 years and that he has a high school education. Furthermore, VA treatment records show that the Veteran was working for Mercedes in late 2012. Given that the Veteran meets the schedular rating under 38 C.F.R. § 4.16(a)(4), that the medical evidence shows he is limited light physical or sedentary employment for his left hand disability and has stated that he has difficulty working with others, and that the evidence shows has mostly been a truck driver for 30 years, the Board resolves all reasonable doubt in the Veteran's favor and determines that prior to December 11, 2014, a TDIU rating is warranted. 38 U.S.C.A. §§ 5107(b); 38 C.F.R. §§ 3.102, 4.3. As to the proper effective date, the Veteran states that that he last worked in 2012 and the evidence shows he worked until at least late 2012. Therefore, the best date that it is factually ascertainable that the Veteran was precluded from substantially gainful employment due to a combination of his service-connected disabilities is January 1, 2013 as there is no indication that he worked in 2013. ORDER An increased rating in excess of 10 percent for residuals of gunshot wound, 1st web space of the left hand is denied. Prior to December 11, 2014, a TDIU is granted effective January 1, 2013, subject to the laws and regulations governing the payment of monetary awards. REMAND The Board notes that the Veteran filed a timely notice of disagreement with regard to an April 2014 rating decision that denied entitlement to service connection for glaucoma/cataracts, bilateral eyes. However, the RO has not issued a statement of the case. Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issues must be remanded to the RO for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the issue must be remanded. Accordingly, this issue is REMANDED for the following action: Issue the Veteran a statement of the case on the issue of entitlement to service connection for glaucoma/cataracts, bilateral eyes. The Veteran and his representative must be clearly advised of the need to file a substantive appeal if the Veteran wishes to complete an appeal of this issue. If, and only if, an appeal of the issue is perfected, return the appeal 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 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 2014). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs