Citation Nr: 1610399 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 10-29 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for residuals of a fracture of the metacarpal of the right fifth finger, evaluated as noncompensable prior to March 6, 2015, and as 10 percent disabling from March 6, 2015. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. This matter was previously before the Board in November 2014 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the its remand. During the pendency of the Veteran's claim, in an August 2015 rating decision, the Appeals Management Center (AMC), granted a 10 percent rating for the Veteran's right fifth finger disability, effective from March 6, 2015. The AMC also granted service connection for five other issues which were before the Board in November 2014. As such, those five issues are no longer for appellate consideration. The issue of entitlement to service connection for a right hand disability, other than service-connected residuals of a fracture of the metacarpal of the right 5th digit (little finger), has been raised by the record (See October 2008 and September 2009 VA Forms 21-4138 and 2014 Board hearing testimony), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). FINDINGS OF FACT The Veteran's service-connected residuals of a fracture of the metacarpal, right fifth finger have been manifested by complaints of pain, limitation of motion, and weakness, but the disability picture does not more closely approximate amputation. CONCLUSION OF LAW The criteria for an increased rating for residuals of a fracture of the metacarpal of the right fifth finger, evaluated as noncompensable prior to March 6, 2015, and as 10 percent disabling from March 6, 2015, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a , Diagnostic Codes 5227, 5230 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in June 2008. VA has a duty to assist the Veteran in the development of the claim. The claims file includes medical records and the statements of the Veteran in support of his claim. The Board has considered the statements and 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 for which VA has a duty to obtain. The record reflects that the Veteran filed for Social Security Administration (SSA) disability benefits in 1993 or earlier. The Veteran has not asserted that there are any SSA records which are pertinent to his claim. In addition and notably, the pertinent rating period on appeal is from 2008 to present; thus, SSA records from 1993 or earlier would not reasonably support the Veteran's claim that his disability has worsened. In addition, the rating code, as described more fully below, does not allow for a rating based on decreased, or lack of, limitation of motion of the little finger. Thus, any records which reflect such complaints would not be beneficial to the Veteran. A remand to obtain SSA records, if any, would serve no useful purpose and merely delay adjudication of the Veteran's claim. In 2014, the Board remanded the Veteran's claim for an examination. The Board finds that the examination report is inadequate as it is internally inconsistent. However, upon further review of the claims file, the pertinent case law, and the rating code(s), the Board finds that a remand to obtain another examination and/or clarification of the report is not warranted and would serve no useful purpose. As explained more fully below, the regulations do not allow for compensation for limitation of motion or ankylosis of the little finger; thus, an examination to assess the Veteran's range of motion is not necessary. (In addition, symptoms such as pain and weakness would be considered under limitation of motion.) Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis In a July 1975 rating decision, service connection was granted and a noncompensable rating assigned for residuals of a fracture of the metacarpal of the right fifth finger. The Veteran filed a claim for increased rating in June 2008. During the course of the appeal, the RO increased the rating to 10 percent, effective March 6, 2015. The Veteran's disability is evaluated under DC 5299-5230. He is right hand dominant; thus, it is considered his major extremity for rating purposes. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions The Board finds that DC 5230 most accurately reflects the Veteran's disability. Service connection has been granted for only the right fifth metacarpal fracture; thus, the rating criteria for multiple digits are not applicable. There is no x-ray evidence substantiating an arthritis diagnosis in the service connected joint, so DC 5003 and 5010 for arthritis are not appropriate. Under DC 5230 any limitation of motion of the little finger is noncompensable. For purposes of thoroughness, the Board will discuss the evidence of record. A June 20, 2008 VA general medicine note reflects an old, well-healed fracture at the base of 5th digit; the Veteran reported that he has intermittent throbbing pain at that location. There was no decreased strength, no numbness, and no tingling. There were no other affected joints. The Veteran had full strength of 5/5 and a full range of motion. A July 2008 VA examination report reflects that the Veteran exhibited "pain well beyond what one would expect with slight palpation as well as with passive range of motion" and had "decreased grip strength." It was noted that there "is a question of [the Veteran's] effort" with the grip strength. X-ray studies showed some mild degenerative changes at the interphalangeal joint of the thumb and the radial carpal joint; no degenerative changes were noted at the service-connected metacarpal. The diagnosis was well-healed fifth metacarpal fracture. The examiner further noted that the Veteran's complaints seemed to be more subjective than objective; his complaints of severe pain were "far outside the norm" of what would be expected, and the Veteran did not appear to have any loss of function of the hand. The examiner found that the Veteran's mild decreased grip strength was questionable due to the Veteran's effort or lack thereof. Additional VA records reflect that the Veteran continued to complain of pain and requested medication. The Veteran testified at the 2014 Board hearing that the injury to his finger in service was actually to his hand, and "not so much the finger." As noted above, the Veteran is not in receipt of service-connection for his entire right hand. The Veteran testified that it is more painful when the weather changes, he has difficulty grasping (or an inability to grasp) onto objects, and has lost strength in the hand, has difficulty driving, and because of the severity of the pain, he has an increase in pain medication. He contends that he lost mobility in his whole hand, not just the finger, and that the whole hand was fractured. (The Board notes that the Veteran has also reported a post-service fracture of the hand.) At the September 2014 Board hearing, the Veteran also contended that his pain was so bad that he had recently had an increase in medication. An August 2014 VA clinical record reflects that the Veteran "has excuse against every med except T#3 and Vicodin. [Patient] signed pain contract with me 5/2014. He refused to do a drug screen that day so I weaned him off. Today (8/13/14), the [patient] got a drug screen and he agrees to get one every visit if requested. I am reinstating Norco and increased to 180 per month. I explained that I will not be increasing it any further." It was further noted that the Veteran has been potentially belligerent at times when trying to "convince clinicians to give him T#3/Norco." The record also reflects that the Veteran had previously switched providers because the previous provider refused to renew his pain med after he did not comply with his agreement to get a urine toxicology evaluation. A March 2015 VA examination report reflects that the Veteran had full range of motion the finger, no gap between the thumb and the fingers, pain noted on examination with flexion and extension that does not result in functional loss, and localized tenderness or pain on palpation (tender 5th finger). The Veteran was able to perform repetitive use testing of the right hand, with no additional functional loss or range of motion limitation. The Board finds that the VA examination report is internally inconsistent because the examiner found no loss of range of motion, but also found that the Veteran had "less movement due to ankylosis, adhesions, etc. deformity, and found that the Veteran's right little finger was ankylosed at 30 degrees of flexion. The examiner also found that the Veteran had decreased right hand grip of 3/5 due to his fracture of the right 5th metacarpal bone. Despite conflicting opinion as to range of motion and/or ankylosis, the examiner found that functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Based on a review of the record, the Board finds that a compensable rating prior to March 6, 2015, and a rating in excess of 10 percent from March 6, 2015 are not warranted. In addition to DC 5230, the Board has considered DC 5227, for ankylosis. Under DC 5227, a noncompensable rating is the maximum. The Board has also considered the Note pertaining to DC 5227, which reflects that consideration should be given to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interferences with overall function of the hand. The Board finds that the probative evidence of record does not reflect that that the Veteran's right fifth finger disability is akin to amputation or that there is resulting limitation of motion of the other digits or interference with overall function of the hand. As noted above, upon clinical examination in 2008, which the Board finds to be probative evidence of record, there was no limitation of motion. In addition, VA clinical records do not reflect a clinical picture akin to amputation. Although the 2015 examiner stated that the Veteran had difficulty in holding things with his right hand and decreased grip strength, this finding is not supported by the evidence as being due to his service-connected little finger disability (as opposed to his post service fracture, thumb disability, and/or rheumatoid arthritis symptoms). It appears that the AMC considered those findings and assigned a 10 percent rating from the date of the examination. The assignment of the 10 percent rating from March 6, 2015 resulted in a staged rating. Hart, 21 Vet. App. at 505. The Board finds that neither the regulations nor the facts show that assignment of the 10 percent rating is warranted prior to that date. The Board finds that the Veteran's statement and the lay statements are not sufficient to grant a 10 percent rating earlier than March 6, 2015 because of the contradictory contentions regarding the Veteran's symptoms and their severity. There is no competent credible evidence which supports a finding of a compensable rating prior to March 6, 2015. The Veteran's testimony at the Board hearing was in regard to his whole hand, for which he is not in receipt of service-connection. Moreover, his credibility as to the functioning of his disability was questioned upon clinical examination in 2008. The Board has also considered whether 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, entitled "Painful motion," provides in its fifth sentence as follows: "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." Section 4.59 "is one of several regulations that precede the rating schedule for the musculoskeletal system and explain how to arrive at proper evaluations under the DCs appearing therein." Specifically, it "provides guidance for noting, evaluating, and rating joint pain." Burton v. Shinseki, 25 Vet. App. 1 (2011). In the present case, the Board finds that 38 C.F.R. § 4.59 does not support the assignment of a compensable rating. Under DC 5230, any amount of limited motion warrants a noncompensable rating. 38 C.F.R. § 4.59 must read in conjunction with, and subject to, the applicable diagnostic code. The Board has determined that, based on the Veteran's reports of pain and limited motion, DC 5230 is the most appropriate code upon which to rate his service-connected disability. DC 5230 does not instruct that other diagnostic codes should be considered when determining an applicable rating for a disability. The Court in Sowers v. McDonald, 2016 WL 563055 (Feb. 12, 2016) held as follows: VA clearly expressed its determination that DC 5230 be the only DC applicable to a right ring finger disability based on limitation of motion and that limitation of motion of the right ring finger does not warrant a compensable disability rating . . . DC 5230's specific finding that there is no impairment in earning capacity from any limitation of motion of the right finger trumps the general intent in § 4.59 to compensate painful motion with at least the minimum compensable rating. In sum, the Board finds that an increased rating is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Other considerations The Veteran's complaints of pain and/or weakness are contemplated in the rating criteria as they affect his range of motion. Hence, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced. The Veteran is in receipt of service connection for residuals of fracture of the metacarpal of the right fifth finger, rectal bleeding, gastroesophageal reflux disease/hiatal hernia/ disorder of the tonsils, bilateral athletes' foot, and pseudofolliculitis barbae. All of the pertinent symptoms and manifestations have been evaluated by the appropriate diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not a case involving an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted. The Veteran is in receipt of service connection for residuals of fracture of the metacarpal of the right fifth finger, rectal bleeding, gastroesophageal reflux disease/hiatal hernia/ disorder of the tonsils, bilateral athletes' foot, and pseudofolliculitis barbae. He has a 30 percent combined evaluation for his service-connected disabilities. This evaluation fully contemplates the combined impact and referral for extraschedular consideration is not warranted. Even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific service-connected disability. As such, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Finally, the Board is cognizant of the ruling of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has contended that he cannot work due to his right "hand"; however, he is not in receipt of service-connection for his right hand, but only for a fracture to the metacarpal of the right little finger. In addition, as noted by the Court in Sowers v. McDonald, DC 5230 has specific finding that there is no impairment in earning capacity from any limitation of motion of the ring finger. The Board finds that entitlement to a TDIU has not been reasonably raised by the record. ORDER Entitlement to an increased rating for residuals of a fracture of the metacarpal of the right fifth finger, evaluated as noncompensable prior to March 6, 2015, and as 10 percent disabling from March 6, 2015, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs