Citation Nr: 1608482 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 13-13 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to a compensable rating for residuals of a fracture, 4th finger, left hand. 3. Entitlement to an initial rating in excess of 10 percent for a left knee disability, chondromalacia and degenerative joint disease. ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from March 1991 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The claim for an increased rating for a left finger disability was previously remanded by the Board in March 2015. There were additional disabilities in appellate status at the time of the March 2015 remand which were not considered. Specifically, a September 21, 2011 statement of the case considered service connection for migraines, a hip condition, a back condition and increased ratings for the knees bilaterally; with subsequent perfection of the appeal by a timely Form 9, indicated as received on November 15, 2011. A December 2015 rating decision granted the claims for service connection for a back disability and a hip disability; thus, the Board does not have jurisdiction over these claims. Additionally, a January 2016 letter from the Veteran indicates that he wishes to withdraw his claim for an increased rating for a right knee disability. Thus, there remains no case or controversy with regards to this claim. The issues of entitlement to service connection for migraine headaches and entitlement to an increased rating for a left knee disability, chondromalacia and degenerative joint disease, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The residuals of a left ring finger break have been manifested by painful limitation of motion but without ankylosis and without arthritis. CONCLUSION OF LAW The criteria for an initial compensable rating for the residuals of a left fourth finger fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5230 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). 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 v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in December 2011 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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 reports of VA and private treatment and examination. 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 claim. Additionally, as the Veteran was afforded a contemporaneous examination and updated VA treatment records were obtained on remand, substantial compliance with the Board's remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Increased Rating Claim Under the criteria which became effective August 26, 2002, ankylosis of the ring or little finger does not warrant a compensable evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2015). "Ankylosis" is immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 86 (28th ed., 1994). Similarly, any limitation of motion of the ring or little finger is considered noncompensably disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2015). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). 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 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability are sufficient. Above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2015). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2015) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2015). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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 (2015). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2015). However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. The Veteran originally filed a claim for an increased rating in January 2011 and a decision was rendered in June 2011. Thereafter, the Veteran filed a notice of disagreement in December 2011. An April 2012 Report of General Information indicates the Veteran called saying he was filing a claim for increase and he was not pursuing an appeal. After this correspondence, the RO readjudicated the claim in a July 2012 rating decision. The Veteran filed a notice of disagreement in October 2012 and a statement of the case was provided in March 2013. Thereafter, the Veteran appealed to the Board with a Form 9 dated in March 2013. Turning to the evidence of record, in an April 2011 statement in support of claim, the Veteran explained that as the years went by, he began to develop "more and more stiffness and pain." He indicated that he was currently employed at a security office and had trouble gripping luggage and searching passengers which was a daily task in his job. He indicated his finger often got stiff on "cold/damp" days and nights. He indicated problems moving his finger due to decreased range of motion and decreased grip strength. He indicated he had to remove his wedding band because of swelling. In April 2011, the Veteran underwent a VA examination in connection with his claim for an increased rating. He reported pain in the left ring finger, along with decreased strength, stiffness, swelling and decreased dexterity. He indicated experiencing a flare-up of these symptoms as often as once per day and each time they last for 2 hours. He indicated experiencing limitation of motion of the joint which he described as being only able to bend "so far without pain." An examination of the left hand ring finger revealed no ankylosis and range of motion of all joints was within normal limits without additional limitation on repetitive motion testing. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The left hand x-ray results were within normal limits. It was noted that neither his usual occupation nor his daily activities were affected by his condition. In June 2011, the RO denied the claim because the 4th finger showed full range of motion without painful motion, weakness or loss of function equivalent to ankylosis or amputation of the finger. An October 2011 private treatment record indicated there was no swelling of the joint, but there was mild tenderness of the MCP and POP joints with decreased range of motion. An x-ray revealed mild loss of joint space of the fourth DIP joint diagnosed as mild osteoarthritis. It was noted that otherwise the radiograph was negative. In December 2011, the Veteran underwent another VA examination. He complained of pain, decreased strength, locking, stiffness, swelling and decreased dexterity in the 4th finger of the left hand. He related experiencing flare-ups as often as 3 to 4 times per week lasting 4 hours. The Veteran indicated that during a flare-up, he experienced functional impairment described as pain and weakness. In addition, the Veteran related that during flare-ups, he experienced limitation of motion of the joint that affected griping and lifting. On examination, the examiner noted a decrease in strength "in regards to pulling, pushing and twisting." The examiner noted deformity of the left ring finger at the PIP joint and that the MP joint was stiff. It was noted that the degree of angulation was 20 degrees. Range of motion was noted to be within normal limits and remained normal after repetitive testing. It was noted the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. On examination of left hand dexterity, there was no gap between the proximal transverse crease of the palm to the left index fingertip and no objective evidence of pain on attempt even after repetition. The Veteran's fourth index finger disability was indicated as being asymptomatic. It was noted that the Veteran's condition did not affect his usual occupation, although his daily activity was impaired due to inability to make a complete fist with his left hand "as the little finger and ring finger cannot be closed." In July 2012, the RO continued the denial assigning a noncompensable evaluation based on a diagnosed disability with no compensable symptoms. In his March 2013 Form 9, the Veteran indicated the injury effected the range of motion in his finger and his ability to do his job. The April 2015 examination report indicates that there is no ankylosis and the functional impairment is not equivalent to amputation. On objective examination, the Veteran had a normal looking left ring finger with no deformity but loss of range of motion. The x-rays showed no deformity of the left ring finger. The fracture could not be identified which signified excellent healing. An addendum indicates that there is no evidence of arthritis and no evidence of neurological problems or ulna clawing. Initially, the Veteran's disability was rated under Diagnostic Code (DC) 5299-5227. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic codes ending in "99" are used to designate a disability that is not expressly addressed in the rating criteria. Id. Diagnostic Code 5230 pertains to limitation of motion of the ring finger or little finger. Under that diagnostic code, for either the major or minor side, any limitation of motion warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Here, the evidence does show that the Veteran's left ring finger disability has resulted in limitation of motion based on clinical testing. In any case, limitation of motion of the ring finger warrants a noncompensable rating under Diagnostic Code 5230. As the Veteran retains motion in and functional use of the left ring finger, his disability picture does not approximate ankylosis of the left ring finger. In any event, even unfavorable ankylosis of the ring finger warrants only a noncompensable rating. See 38 C.F.R. § 4.71a , Diagnostic Code 5227. Moreover, the evidence does not show that the Veteran's disability picture approximates amputation of the left ring finger, which could warrant a higher rating based on the location of the amputation. See 38 C.F.R. § 4.71a, Diagnostic Code 5155. This is so even with consideration of painful motion and other factors. Therefore, a compensable rating is not warranted for residuals of left ring finger disability at any point during the relevant period under the diagnostic codes pertaining to the ring finger. The Board does not find that Diagnostic Code 5010 is appropriate for evaluating the Veteran's left ring finger disability as arthritis has not been substantiated by x-ray findings. There is a private x-ray report dated October 2011 which revealed mild loss of joint space of the fourth DIP joint diagnosed as mild osteoarthritis; however, this was a one-time finding repeatedly refuted subsequently. Most recently, the April 2015 examiner specifically indicated that there were no abnormal findings resulting from imaging studies and that there was no arthritis. Thus, any diagnostic code pertaining to arthritis is not applicable to the Veteran's claim. Lastly, the Board does not find that a compensable rating is warranted under 38 C.F.R. § 4.59. It is the intention to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. The Rating Schedule does not provide for even a 10 percent rating for any amount of limitation of motion of the ring finger. Thus, there is no "minimum compensable rating" for limitation of motion of a ring finger joint. Consequently, although the evidence tends to show that the Veteran experiences painful motion of the left ring finger, that manifestation does not provide for a compensable rating. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected finger disability is manifested by signs and symptoms such as pain and some limitation of motion. These signs and symptoms are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the finger disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 2560, 5261 (providing ratings on the basis of ankylosis and limited flexion and extension). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's finger disability because the rating criteria contemplate his symptomatology. Thun, 22 Vet.App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, there is no indication that the Veteran has been hospitalized due to his finger disability and there is no indication that the he is solely unemployable due to his finger. The Board finds, therefore, that the Veteran's service-connected finger disability does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, referral for consideration of extraschedular rating is not warranted. The preponderance of the evidence is against the claim for an initial compensable rating for the Veteran's left ring finger disability; there is no doubt to be resolved; and a compensable rating is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Entitlement to a compensable rating for the residuals of a fracture, 4th finger, left hand is denied. REMAND Concerning the claim for service connection for headaches, the Veteran claimed in a March 2009 statement that he has headaches secondary to medication for his service-connected knee disabilities. Also, there is a single notation of headache in the Veteran's service treatment records, dated September 1991. As the Veteran has not been afforded a VA examination to consider such contentions, such must be accomplished on remand. Additionally, a VA 21-4142 dated July 2013 indicates that the Veteran had recent treatment from Kaiser Permanente for his knee disability. Such records must be requested on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder, specifically to include records from Kaiser. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for an examination for the claimed condition of headaches to determine the relationship between the claimed disability and active service. The Veteran's claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. An examiner should provide an opinion as to whether the Veteran's headaches are more likely, less likely, or at least as likely as not (50 percent probability) related to an incident of his active service, to include the one time documented treatment, or secondary to or aggravated by his service-connected knee disabilities, including any medication taken in treatment of the knees. If aggravation is found, a baseline prior to the onset of aggravation must be determined. All indicated tests should be performed and all findings should be reported in detail. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. Then, the RO or the AMC should readjudicate the claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs