Citation Nr: 1612165 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 09-40 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating higher than 10 percent for residuals of a right index finger fracture. 2. Entitlement to a compensable initial rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO), which increased the Veteran's rating for residuals of fracture for the right first finger to 10 percent and granted service connection for left ear hearing loss and tinnitus. In June 2013, the Board remanded this case for further development. That development has been completed and the case has properly been returned to the Board for appellate consideration. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's residuals of a right index finger fracture have been manifested by pain and limitation of motion, but not by functional impairment equivalent to amputation of the finger. 2. Throughout the entire appeal period, the Veteran's left ear hearing loss has been manifested by hearing impairment no worse than Level I. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for residuals of a right index finger fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5225-5010 (2015). 2. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in a letter sent to the Veteran in April 2008. The Board also finds that the duty to assist requirement has been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has provided adequate examinations in this case. In compliance with the Board's June 2013 remand, VA obtained additional VA treatment records and VA provided the Veteran with medical examinations in August 2013. These examinations contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore, these examinations are adequate for VA purposes. Thus VA has complied with the June 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Rating - Right Index Finger The Veteran was originally granted service connection for fracture right index finger in an April 1972 rating decision. In March 2008, he filed a claim for an increased rating. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted; a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran is currently rated under hyphenated diagnostic code 5225-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code (DC) requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, DC 5225 provides rating criteria for ankylosis of the index finger and DC 5010 provides rating criteria for traumatic arthritis. See 38 C.F.R. § 4.71a. Under DC 5225, any ankylosis of the index finger, whether favorable or unfavorable, major or minor extremity, warrants a 10 percent rating. See id. A Note to that DC instructs that a rater should also consider whether evaluation as amputation is warranted and whether additional evaluation is limited for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a, DC 5225. Under DC 5010, traumatic arthritis substantiated by x-ray findings is rated as degenerative arthritis (DC 5003); meaning that a rating under this DC will be based either on limitation of motion of the affected joint under the appropriate diagnostic code or, if only a noncompensable limitation of motion is found, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. A higher rating is available for amputation of the index finger under DC 5153. 38 C.F.R. § 4.71a. Under this diagnostic code, a 10 percent rating is assigned for amputation through the long phalanx or at the distal joint for either hand. 38 C.F.R. § 4.71a, DC 5153. A 20 percent rating is assigned when there is no metacarpal resection, and the amputation was at the proximal interphalangeal joint or proximal thereto. Id. Metacarpal resection of the index finger of the dominant hand with more than half the bone lost warrants a 30 percent rating. Id. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). An April 2008 private treatment record notes a Heberde' s node in the region of the distal interphalangeal (DIP) joint with 15 degrees of ulnar deviation. Active motion was 20 to 45 degrees in the DIP joint. There was no sense of crepitus or gross instability. A May 2008 private x-ray study showed mild degenerative changes of the right hand. There was mild to moderate change of the first carpal metacarpal joint with narrowing and small subchondral cysts in the base of the first metacarpal. There was mild degenerative change of the DIP joint of the index finger with narrowing. There was a small probably accessory ossification center adjacent to the base of the proximal phalanx of the right small finger. In May 2008, the Veteran underwent a VA examination in conjunction with this claim. At that time he reported constant aching pain localized in the right index finger at a level of 6/10. At the time of pain he could function without medication. He was not receiving any treatment and had not been hospitalized or had surgery for this condition. This is his dominant hand as he uses his right hand to write, eat, and comb his hair. The range of motion of the right index finger was: DIP- flexion 70 degrees; PIP - flexion 110 degrees; and MP - flexion 90 degrees. Joint function was additionally limited after repetitive use by pain, weakness, lack of endurance, and incoordination. Pain had the major functional impact. These additionally limited the joint function by 0 degrees. The joint function was not additionally limited by fatigue after repetitive use. The right hand x-ray showed degenerative changes of the first carpal metacarpal joint and distal interphalangeal joint of the index finger with narrowing. A September 2008 VA treatment record noted linear lucency at the base of the distal phalanx of the right index finger which could be due to undisplaced fracture. An October 2008 VA treatment record found a deformed DIP joint of right index finger with range of motion between 15 to 45 degrees. Varus and valgus stress test over the index finger revealed no instability. There was direct tenderness over the DIP joint. Neurovascular examination of the right hand was otherwise normal. X-ray of the right hand revealed signs of osteoarthritis involving the DIP joint of right index finger. In his October 2009 VA Form 9, the Veteran reported that he had constant pain and throbbing in his finger. He used his right hand less and less and had to adjust the way he wrote. In August 2013, the Veteran underwent a VA examination in conjunction with this claim. He was determined to be right hand dominant. X-rays showed arthritis. There was limitation of motion or evidence of painful motion for the right index finger. There was a gap of less than one inch between the right index fingertip and the proximal transverse crease of the palm and evidence of painful motion in attempting to touch the palm with the fingertip beginning at a gap of less than one inch. There was limitation of extension by no more than 30 degrees with painful motion beginning at extension of no more than 30 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with additional limitation of motion post-test. Post-test, there was a gap of one inch or more between the right index fingertip and the proximal transverse crease of the palm and limitation of extension by no more than 30 degrees for the index. The Veteran had functional loss of the right index finger in that it had less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, inability to straighten index finger, and last phalanx angled away from midline toward long finger. The Veteran had tenderness or pain to palpation. His right hand grip strength was reduced to 4/5 (active movement against some resistance). He had ankylosis of the right index finger, specifically of the distal phalanx, which was noticeable when both hands were viewed simultaneously, when the Veteran shook hands, or when he picked up a pencil or pen to sign his name. The Veteran had no associated scars and did not use an assistive device. The Veteran's finger condition did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran's finger condition impacted his ability to work in that he worked as sub-agent for insurance firm, doing paperwork, using a computer, and using an iPhone. He had difficulty turning doorknobs, opening jars, and tying shoes. He shook hands with his index finger extended because he is unable to bend it and he reported that this was unnerving to many people that he meets. After a review of the pertinent evidence, the Board determines that a rating higher that that already assigned is not warranted. Based on the above, the Veteran's residuals of a right index finger fracture have been manifested by pain and limitation of motion. This is contemplated by the current 10 percent rating. See 38 C.F.R. § 4.71a, DC 5225-5010. A higher rating would be available under DC 5153 for amputation of the finger or its functional equivalent, but that degree of impairment is not shown here. See 38 C.F.R. § 4.71a. Indeed, the August 2013 examiner specifically found that this disability did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis and the Veteran has made no such assertions. Likewise, the Board has considered whether additional evaluation is warranted based on resulting limitation of motion of other digits or interference with overall function of the hand. See 38 C.F.R. § 4.71a, DC 5225. Neither is shown here. Therefore, the Board finds that the preponderance of the evidence is against a compensable schedular rating for residuals of a right index finger fracture. Hence the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Increased Initial Rating - Left Ear Hearing Loss The Veteran is seeking a compensable initial rating for left ear hearing loss. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VII, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. In this case, the Veteran is only service connected for left ear hearing loss. In order to determine the percentage evaluation from Table VII, the non-service connected right ear will be assigned a Roman Numeral designation of I, subject to the provisions of 38 C.F.R. § 3.383 (paired organ rule). 38 C.F.R. § 4.85(f). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). During the appellate period, the Veteran has undergone several audiologic evaluations. A March 2008 private audiogram showed left ear hearing loss as follows: HERTZ 1000 2000 3000 4000 Average Left Ear 20 20 25 40 26.25 Speech discrimination was 92 percent. An April 2008 private audiogram showed left ear hearing loss as follows: HERTZ 1000 2000 3000 4000 Average Left Ear 15 10 20 35 20 Speech recognition ability on the Maryland CNC word list was 92 percent. An October 2008 VA treatment record showed left ear hearing loss as follows: HERTZ 1000 2000 3000 4000 Average Left Ear 15 15 25 50 26.25 Speech recognition ability on the Maryland CNC word list was 92 percent. An April 2009 VA treatment record showed left ear hearing loss as follows: HERTZ 1000 2000 3000 4000 Average Left Ear 15 15 30 50 26.5 Speech recognition ability on the Maryland CNC word list was 98 percent. Applying the method for evaluating hearing loss to the results of this audiology evaluation, the results described above correspond to no more than assignment of Roman Numeral designation of I for the left ear under Table VII, which combined with a Roman Numeral designation of I for the Veteran's non-service connected right ear warrants a noncompensable (0 percent) rating under Table VII. 38 C.F.R. § 4.85. In August 2013, the Veteran underwent a VA examination in conjunction with this claim. At that time, his left ear hearing loss was as follows: HERTZ 1000 2000 3000 4000 Average Left Ear 20 25 50 55 37.5 Speech recognition ability on the Maryland CNC word list was 92 percent. At that time, the Veteran reported that he was not too affected by hearing loss. He missed some information, but felt if he just focused more he was able to communicate well in most listening situations. The Veteran's hearing loss did not impact ordinary conditions of daily life, including ability to work. The results of the August 2013 exams correspond to a Roman Numeral designation of I for the left ear under Table VII, which combined with a Roman Numeral designation of I for the Veteran's non-service connected right ear warrants a noncompensable (0 percent) rating under Table VII. 38 C.F.R. § 4.85. None of the audiology examinations conducted during appeal period have demonstrated an exceptional pattern of hearing loss that would warrant application of the alternate system of rating. 38 C.F.R. § 4.86. The Board finds that the preponderance of the evidence is against a compensable schedular rating for bilateral hearing loss. The audiological evaluations listed above show that while the Veteran has hearing loss, his disability does not warrant a compensable rating when his audiological examination results are applied to VA regulations. The Board has considered the statements made by the Veteran in which he asserted that his hearing loss disability warrants a compensable rating. However, the Board is bound in its decisions by the VA regulations for the rating of hearing loss. 38 U.S.C.A. § 7104(c). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted. Therefore, the Board finds that the preponderance of the evidence is against a compensable schedular rating for left ear hearing loss. Hence the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Extraschedular Consideration Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2015). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology and provided for higher ratings for more severe symptoms. The Board recognizes his report of his finger disability resulting in difficulty turning doorknobs, opening jars, and using devices, as well as his perception of others' reactions to his disability when shaking hands. However, these are the results of his symptoms which are contemplated by the rating schedule which recognizes ankylosis. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Similarly, his reported missing of some information due to his hearing loss is contemplated by the schedule which accounts for both thresholds and word recognition. Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. (CONTINUED ON NEXT PAGE) For these reasons, the Board finds that the preponderance of evidence is against referring this case for extraschedular consideration. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A rating higher than 10 percent for residuals of a right index finger fracture is denied. A compensable initial rating for left ear hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs