Citation Nr: 1602233 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 14-19 301 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial increased rating in excess of 10 percent for residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger. 2. Entitlement to an initial disability rating in excess of 10 percent for traumatic neuropathy of the left hand. ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2006 to August 2011. This matter comes before the Board of Veterans' Appeals from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. By an April 2014 decision, the Decision Review Officer (DRO) awarded a (10 percent) rating for residuals of a crush injury to the left index, middle, and ring fingers with degenerative changes of the middle finger, effective August 15, 2011. In that decision, the DRO also awarded a separate (10 percent) rating for traumatic neuropathy of the left hand (previously evaluated with scars as decreased sensation), effective August 15, 2011. The February 2012 rating decision granted service connection for the left index and ring finger scars, and the Veteran did not indicate disagreement with the assigned rating. Thus, this decision will not discuss the left index and ring finger scars. FINDINGS OF FACT 1. The residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger are manifested by pain, including pain on motion. None of the fingers have limitation of motion at a gap of 1 inch or more between the fingertip and the proximal transverse crease of the palm; ankylosis is not shown. 2. The traumatic neuropathy of the left hand is manifested by mild incomplete paralysis of the median nerve with subjective symptoms of pain and paresthesias, and with objective findings of diminished sensation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5229, 5230 (2015). 2. The criteria for an initial rating in excess of 10 percent for traumatic neuropathy of the left hand have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.159, 3.321, 4.124a, DC 8515 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist the Veteran 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). 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. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran's claims arise from disagreement with the initial disability ratings assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, and additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. Regardless, the Veteran received notification as to the evidentiary requirements necessary to establish a higher initial evaluation via a May 2011 letter. The claim was subsequently readjudicated in an April 2014 statement of the case (SOC). See Prickett, 20 Vet. App. 370 (finding that issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service VA examination reports. The Veteran has not identified any further outstanding pertinent post-service treatment records. He has been afforded multiple VA examinations for his service-connected claims for his left hand injury over the course of the appeal. The Board finds that, collectively, these examinations are adequate for the purposes of evaluating the residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger, and traumatic neuropathy of the left hand, as each involved a review of the Veteran's pertinent medical history as well as a clinical examinations of the Veteran, and provided findings responsive to the applicable rating criteria. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Regulations and Analysis The Veteran contends that he is entitled to increased disability ratings for his service-connected residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger, and traumatic neuropathy of the left hand, both of which are presently rated at 10 percent disability ratings. Because the Veteran is challenging the initially assigned disability ratings, they have been in continuous appellate status since the original assignment of service connection. 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). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service treatment records reveal that the Veteran incurred a crush injury to his left hand during service in July 2010. The initial July 2010 service treatment record indicates a nailbed injury of the index finger, complicated laceration of the middle finger with flexor tendon involvement, and avulsion of the left ring finger. An X-ray result from this record also indicates a tuft fracture of the middle finger with collateral ligament avulsions. In August 2011, a VA Compensation and Pension examination of the Veteran was conducted with respect to his initial claim for service connection. X-ray examination of the left hand revealed a fracture deformity of the distal tuft of the middle finger and degenerative changes of the middle finger. There were no fractures of the index or ring fingers identified. In the August 2011 examination, the Veteran reported that he had numbness and loss of touch and vibration especially in his third digit volar surface, the distal and interphalangeal segment, and decreased sensation in the tip of the second digit. He had normal sensation in the fourth digit of the left hand. The examiner noted that the Veteran is able to make a fist, touch the tips of all four fingers with the tips of his thumb, and has normal grip strength. The Veteran was also afforded a VA examination in March 2014. In that examination, the Veteran complained of lack of strength in his left hand following the accident. He indicated that he experiences flare-ups that impact the function of his hand. Specifically, the Veteran claimed that the cold aggravates his left hand, making it too painful to use. He stated that he experienced numbness in the tips of his fingers. He also indicated that his hand condition impacts his ability to work, because of the difficulty of gripping tools and twisting things open. The examiner noted that all fingers could flex to within 1 inch of the proximal transverse crease of the palm during finger flexion, even after repetitive motion. In fact, there was no limitation of motion on flexion and extension of the fingers. There was objective evidence of painful motion of the affected fingers. The examiner indicated a functional loss based on pain on movement of his index and middle fingers. The Veteran also indicated pain and tenderness to palpation in his finger tip with decreased sensation. There was no indication of ankylosis. The examiner concluded that there were no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the hand. The March 2014 VA examination also addressed the Veteran's left hand traumatic neuropathy condition. The examiner noted the Veteran's lay statement that the Veteran's symptoms of left hand pain had its onset in winter of 2010. During the examination, the Veteran indicated that the constant pain was mild in his left upper and lower extremity, and intermittent pain was moderate in his left and lower extremity. The examiner also noted paresthesia and/or dysesthesias was moderate in his lower left extremity, and there was numbness in his lower left extremity. The Veteran also indicated in the March 2014 VA examination and his substantive appeal that he experiences severe throbbing pain in his left hand when it is exposed to below freezing temperature. The VA examiner noted no muscle atrophy or decreased senses in the left hand. The examiner also noted the tips of his index and middle fingers experience numbness. The examiner concluded the Veteran had mild incomplete paralysis of the median nerve. The examiner noted that there was no functional impairment of any extremity. The examiner observed a scar, but noted it was not greater than 39 square cm. The examiner also indicated the claimant had pain and tenderness to palpation in his finger tip with decreased sensation. Strength testing and deep tendon reflexes were normal. The Veteran was observed with a normal gait, and no trophic changes. The examiner provided a diagnosis of peripheral neuropathy based on trauma neuropathy of the digital nerve of the left index finger tip and finger pads. 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. 38 C.F.R. § 4.40. When evaluating musculoskeletal disabilities, VA must consider additional rating factors including functional loss. 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. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. 38 C.F.R. § 4.40. The Court has held that 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 (Tyra) v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122 (2000). A. Residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger A 10 percent rating is warranted where there is a gap of one inch 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, and may be assigned for either the major or minor extremity. 38 C.F.R. § 4.71a, DC 5229. Under DC 5230, a limitation of motion of the ring or little finger is assigned a noncompensable rating. Under the Rating Schedule, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 38 C.F.R. § 4.71, Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such a swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The Veteran does not meet the criteria for a compensable evaluation for any individual finger. The fingers have full range of motion and the fingers are not ankylosed and the limitation of function is not equivalent to amputation of any individual digit. There is painful motion and it is the intent of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability and at least the minimum compensable rating for the joint. C.F.R. § 4.59 (2015). As the finger joints consist of a group of minor joints, a 10 percent rating is warranted. However, the degree of function loss does not warrant more than the minimal compensable evaluation. As the 2014 VA examiner indicated, there were no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the hand. Here, the evidence shows objective evidence of painful motion of the left index, middle, and ring fingers. B. Other Considerations The record does not establish that the rating criteria are inadequate for rating the residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger. The Veteran's disability is manifested primarily by pain, including pain on movement, but no showing of significant weakness, abnormality, or other indicia of greater function loss. The Board finds that these symptoms are contemplated under the rating criteria and under the Deluca criteria, including §§ 4.40 and 4.45. Accordingly, the Board finds that there is no evidence indicating that the Veteran's left hand disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Because the rating criteria is adequate for rating the Veteran's service-connected left hand disability, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008) (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extra-schedular consideration without regard to whether there was marked interference with employment). Thus, referral for an extra-schedular rating is unnecessary. Finally, a total disability rating based on individual unemployability (TDIU) is considered an element of rating claims when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this instance, however, the issue is not raised by the record. There is no evidence that the residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger renders him unemployable, nor does the Veteran assert that he is unemployable. As such, the Board finds that a claim for a TDIU has not been raised by the record pursuant to Rice. Id. C. Traumatic Neuropathy of the Left Hand The Veteran's left hand peripheral neuropathy is rated at 10 percent under DC 8515 for incomplete mild paralysis of the median nerve. September 2010 VA treatment records and the August 2011 VA examination indicate that the Veteran's left hand is non-dominant. The March 2014 VA examination, however, indicates that the Veteran is ambidextrous. Because mild incomplete paralysis of the median nerve warrants a 10 percent rating for either extremity under DC 8515, the determination of the Veteran's dominant hand is not necessary. Under DC 8515, moderate incomplete paralysis warrants a 30 percent rating in the major extremity and a 20 percent rating in the minor extremity. Severe incomplete paralysis warrants a 50 percent rating in the major extremity and a 40 percent rating in the minor extremity. 38 C.F.R. § 4.124a , 8515. Complete paralysis of the medial nerve warrants a 70 percent rating for the major extremity and a 60 percent rating in the minor extremity. Complete paralysis occurs where the hand was inclined to the ulnar side, the index and the middle fingers were more extended that normally, there was considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation was incomplete and defective, there was the absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, the index and middle fingers remained extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm and flexion of wrist was weakened and there was pain with trophic disturbances. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The terms "mild," "moderate," and "severe" are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of the terms "mild," 'moderate," and "severe" by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the evidence of record, the Board finds that the Veteran's traumatic neuropathy of the left hand is best described as mild incomplete paralysis. The VA examinations demonstrate the Veteran's subjective report of pain and paresthesias as well as objective evidence of lost or impaired nerve function. The March 2014 VA examiner noted that there was no functional impairment of any extremity. Muscle strength testing and deep tendon reflexes were normal. The Veteran was observed with a normal gait, and no trophic changes. As the evidence suggests numbness in his fingers and pain in cold weather, there is no indication of motor loss, reflex loss, trophic changes, or loss of muscle strength that would indicate a severe neurological disability under the rating schedule. The examiner also concluded that the Veteran experienced mild incomplete paralysis of the median nerve. This is competent medical evidence provided by a trained physician. See 38 C.F.R. § 3.159(a)(1). Consideration has been given to assigning a staged rating; however, at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. The DRO awarded the Veteran a 10 percent rating to compensate for the traumatic neuropathy of the Veteran's left hand based on trauma to the nerve of the left index finger tip and finger pad. There is no evidence that the Veteran's left hand neuropathy is more severe than mild. Thus, a higher rating than 10 percent is not warranted. See Fenderson, 12 Vet. App. 119. In addition, the Board finds that referral for consideration of extra-schedular rating is not warranted. Thun, 22 Vet. App. 111. The Veteran's service-connected peripheral neuropathy disabilities are manifested by signs and symptoms such as pain and sensory issues. These signs and symptoms are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities for peripheral neuropathy provide disability rating on the basis of the severity of the disorder to include all functional loss considered. As such, there is nothing exceptional or unusual about the Veteran's traumatic neuropathy of the left hand, and there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. Id. Finally, there is no evidence that the Veteran's left hand neuropathy renders him unemployable, nor does the Veteran assert that he is unemployable. Thus, the Board finds that a claim for a TDIU has not been raised by the record pursuant to Rice. Rice, 22 Vet. App. 447. ORDER Entitlement to an initial disability rating in excess of 10 percent for residuals of a crush injury to left index, middle, and ring fingers with degenerative changes of the middle finger is denied. Entitlement to an initial disability rating in excess of 10 percent for traumatic neuropathy of the left hand is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs