Citation Nr: 1732425 Decision Date: 08/10/17 Archive Date: 08/23/17 DOCKET NO. 10-29 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an upper back disability. 3. Entitlement to an evaluation in excess of 10 percent for arthritis of the middle and ring finger of the right hand. 4. Entitlement to an extraschedular rating for service-connected dermatophytosis of the feet. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that denied entitlement to an increased rating dermatophytosis of the feet, and an October 2013 rating decision that denied entitlement to an increased rating for the fingers of the right hand, and service connection for the upper and lower back. The issues of entitlement to service connection for an upper and lower back disability and an extraschedular evaluation for service connected dermatophytosis of the feet and TDIU on an extraschedular basis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right middle finger disability is currently manifested by a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, and does not have ankylosis or amputation. It has also been shown to manifest with pain. 2. The Veteran's right ring finger disability is currently manifested by decreased dexterity and limitation of motion; ankylosis or amputation of the ring finger is not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the service-connected right middle finger disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5154, 5226, 5229 (2016). 2. The criteria for a disability rating in excess of 10 percent for the service-connected right ring finger disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5155, 5227, 5230 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty 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). For the issues decided in the instant document, VA provided adequate notice in letters sent to the Veteran in October 2008 and October 2012. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran. Additionally, the Veteran underwent a VA examination in April 2012 for her fingers. As a whole, the VA examiner reviewed the Veteran's claims folder, considered her complaints, conducted appropriate physical examinations, and provided complete rationales for all opinions expressed. The examination reports have been reviewed and found to be collectively adequate to make a determination on the claims, as together they addressed the Veteran's symptoms in relation to the rating criteria. It appears that all obtainable evidence identified by the Veteran, relative to her claims, has been obtained and neither she nor her representative has identified any other pertinent evidence needed for a fair disposition of this appeal. No further notice or assistance is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Furthermore, the 2012 examination addressed all rating criteria that are required to properly evaluate the service-connected disabilities. The Board has considered the Court's recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the proper interpretation of the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint," was addressed. In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. To the extent that the Veteran would argue that range of motion measurements associated with the testing of her painful motion did not consider all forms of range of motion (active, passive, weight-bearing, non weight-bearing) in compliance with 38 C.F.R. § 4.59 , the Board notes that the Veteran's hand disability is rated under Diagnostic Codes 5229 and 5230, and that additional testing to determine limitations due to painful motion are not required as 38 C.F.R. § 4.59 is not applicable to that rating code as there is no evaluation higher than 10 percent provided. See Sowers v. McDonald, 27 Vet. App. 472 (2016). The Board finds that the combination of the Veteran's VA treatment records, her reported symptoms, and her VA examinations are an adequate basis for Board's findings in this decision. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to her claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating for Right Hand Middle and Ring Fingers The Veteran was granted service connection for her right finger disabilities in December 2003. In October 2012 she filed a claim for an increased rating for her disabilities, and such was denied in an October 2013 rating decision. The Veteran filed a timely notice of disagreement to such decision in November 2013 and perfected her appeal to this claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4 . Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the 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. 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; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2016). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2016). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2016). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's service-connected right third finger disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229 [limitation of motion of index or long finger]. Under Diagnostic Code 5229, a 10 percent disability rating is warranted for limitation of motion of the index finger with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or with extension limited by more than 30 degrees. The Veteran's service-connected right fourth finger disability is currently rated under 38 C.F.R. § 4.71a Diagnostic Code 5230 [limitation of motion of ring or little finger] is applicable to claims involving limitation of motion of the fourth and fifth fingers. Diagnostic Code 5230 provides for a noncompensable [zero percent] rating for any limitation of motion of the ring or little finger. See 38 C.F.R. 4.71a, Diagnostic Code 5230 (2016). As will be discussed in further detail below, the Board notes that there is no indication of amputation or ankylosis of the right third or fourth finger, or impairment analogous thereto, to warrant consideration of the provisions of Diagnostic Codes 5154, 5155, 5156, 5219, 5222, 5223, 5225, 5226, or 5227 in this case. On the contrary, the Veteran was noted to have no ankylosis or amputation of any digit (other than her right index finger which is not before the Board) during her April 2012 examination. In sum, the Veteran's service-connected right middle finger disability is most appropriately rated under Diagnostic Code 5229, and her service-connected right ring finger disability are most appropriately rated under Diagnostic Code 5230. The Veteran has suggested no other diagnostic code, and the Board cannot identify a diagnostic code that would be more appropriate to these claims. Under Diagnostic Code 5229, a 10 percent disability rating is warranted for limitation of motion of the index finger or long finger with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or with extension limited by more than 30 degrees. Further, Diagnostic Code 5230 provides for a noncompensable [zero percent] rating for any limitation of motion of the ring or little finger. The Veteran was treated for her finger disabilities both privately and at the Hampton VAMC treatment centers. Beginning in 2012, the Veteran received treatment for constant pain of her right hand which increased with activity. In December 2012 the Veteran reported decreased pain in her right hand after rehabilitative treatment. In December 2012 the Veteran's range of motion of her middle finger was impaired; she was unable to grasp dynamoneter for grip strength. In May 2013 the Veteran reported decreased use of the right hand due to pain. In 2014 the Veteran received treatment from Riverside Internal Medicine. During such treatment, the Veteran noted that she had right pain intermittently; a right hand X-ray performed in April 2013 showed mild degenerative changes scattered within the right hand joints. In March 2014 the medical professional noted that the Veteran's right hand was swollen, with cool fingertips and the Veteran was unable to completely close her fingers for a full grasp. The Veteran was afforded a VA examination for her fingers in April 2012. At that time, the examiner noted that the Veteran had arthritis of her right middle and right ring fingers and had such diagnosis since 1965. The Veteran reported flare ups of such diagnosis, including the inability to bend the fingers or grip various items. The Veteran further reported that the fingers had limitation of motion and were painful. A gap was noted between the thumb pad and the fingers of more than 2 inches. The pain was noted to begin at the gap of more than 2 inches. Gap of one inch or more was also noted between the fingertips and the proximal transverse crease of the palm. Limitation of extension or pain upon extension was not noted. Tenderness or pain upon palpation of joints was noted in the right hand. Ankylosis of the thumb or fingers was not noted. It was noted that the Veteran used a Velcro wrap for her third and fourth fingers on a regular basis. Functional impairment or functional impact to the Veteran's occupation was not noted as occurring due to her finger disability. In her November 2013 notice of disagreement the Veteran stated that she was rated at 10 percent for her middle and ring finger of the right hand. She reported having swelling and tenderness of the right hand in addition to problems with her daily routine such as washing her hair, cooking and driving. The Veteran further noted that her arthritis was spreading throughout her right hand and she required physical therapy in addition to medication for her fingers. She reported that she was constantly in pain. The Veteran requested a rating of at least 30 percent for her disability. In August 2015 the Veteran was afforded a Disability Benefits Questionnaire by Dr. M.P. At that time the examiner reported that the Veteran had arthritis of the right middle and right ring finger. The examiner noted that the Veteran's condition had pain, stiffness and swelling. The Veteran reported having flare ups of her right hand disability, but did not report any functional loss or impairment due to her right hand disability. A careful review of the record therefore demonstrates that although the Veteran experiences pain and limitation of motion due to her right middle and ring finger disabilities, Diagnostic Code 5229 provides for a maximum 10 percent disability rating with respect to limitation of motion of the long finger. Further, Diagnostic Code 5230 rates any limitation of motion of the fourth and fifth fingers as noncompensably disabling. In order to warrant disability evaluations in excess of the 10 percent assigned for the Veteran's third and fourth fingers (long and ring fingers), the evidence must show the functional equivalent of amputation of the respective finger with metacarpal resection (more than one-half the bone lost). See 38 C.F.R. § 4.71a, Diagnostic Codes 5154 and 5155. In this case, the Veteran, while having painful motion in her fingers, does not display the functional equivalent of amputation of these fingers. Likewise, the Veteran retains the use of her little finger (fifth finger) and the record does not show that her impairment of this finger is the functional equivalent of amputation of the little finger with or without metacarpal resection as contemplated by a compensable evaluation under Diagnostic Code 5156. Likewise, the evidence does not show that the Veteran displays the functional equivalent of unfavorable ankylosis of the long and ring; long and little; or ring and little fingers as contemplated by a rating based on ankylosis under Diagnostic Code 5219 or favorable ankylosis of multiple digits or ankylosis of individual digits as contemplated by ratings based on ankylosis under Diagnostic Codes 5220-5227. In reaching the foregoing conclusions, the Board has considered whether increased disability ratings are warranted for the Veteran's right third and fourth finger disabilities based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40 and 4.45 and the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the Veteran evidences functional loss due to her multiple finger disabilities, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. A 10 percent disability rating is the maximum rating allowable under Diagnostic Code 5229. Further, a noncompensable evaluation is the maximum rating allowable under Diagnostic Code 5230. Accordingly, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration. Moreover, the VA examiner stated in the April 2012 report that range of motion testing of the Veteran's fingers demonstrated an increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss in range of motion with repetitive use. Thus, an opinion could not be expressed, without resort to speculation, as to additional limitation due to repetitive use during a flare-up. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for increased disability ratings for her right middle and ring finger disabilities. To reiterate, the evidence does not show that the Veteran's right middle and ring finger disabilities result in symptomatology that is functional equivalent of ankylosis or amputation. On the contrary, the evidence consistently shows that she retains motion and use of these fingers. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An evaluation in excess of 10 percent for arthritis of the middle finger of the right hand is denied. An evaluation in excess of 10 percent for arthritis of the ring finger of the right hand is denied. REMAND Regarding the Veteran's claims for service connection for upper and lower back arthritis, unfortunately remand is required for the claims on appeal to obtain a VA examination. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record on which to decide the Veteran's claim so that she is afforded every possible consideration. An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). In the present case, the Veteran has ongoing treatment for her back pain since 2012. She has reported dull, achy chronic back pain that requires her to wear a back brace. She further reported that that her neck hurts on a daily basis and that she needs to use a heating pad for relief. See May 2016 Hampton VAMC Treatment Record. Furthermore, the Veteran's treatment records show that her X-ray of her lumbar spine in 2015 was normal and the X-ray of her cervical spine showed degenerative joint disease. See May 2016 Hampton VAMC Treatment Record. The Board notes that the Veteran has indicated through her claim for service connection that she has upper and lower back arthritis related to her service. The Board notes that the Veteran's service treatment records show upon her separation from service in May 1968 that she reported experiencing arthritis or rheumatism in her medical history. The Board finds that examination is warranted for the Veteran's claimed upper and lower back disabilities. Regarding her upper back, the Veteran's treatment records have shown arthritis of such and the Veteran noted on her separation examination a history of arthritis, and has continued pain of the back for years. With regard to her lower back, the Board acknowledges that the 2015 X-ray did not indicate any arthritis; however, the Veteran has received continual treatment for consistent chronic back pain and has claimed such pain is related to service. The Board finds remand is thus required to provide the Veteran with an examination and to obtain an etiological opinion with regard to her upper and lower back disabilities. Regarding the Veteran's claim for an extraschedular rating for the service connected disability of the feet, the Board previously remanded this issue in November 2014. A remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter was remanded to obtain an extraschedular evaluation for the service connected disability from the Director of Compensation and Pension pursuant to the provisions of 38 C.F.R. § 3 321(b) and § 4 16(b) for consideration of whether assignment of an extraschedular rating is warranted. Furthermore, the issues of entitlement to an extraschedular evaluation for the service connected disability of the feet and TDIU were to be readjudciated. The Board notes that the Director of Compensation and Pension opinion was not obtained and the issues were not readjudicated. Accordingly, remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her or her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any diagnosed upper or lower back disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must opine regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed disorder had its onset in, or is otherwise caused by, by the Veteran's military service. In his or her opinion the examiner must address the Veteran's 2015 X-rays of the cervical and lumbar spine. 4. Refer the Veteran's claim for an extraschedular evaluation for the service-connected dermatophytosis of the feet and for entitlement to TDIU on an extraschedular basis to the Director of Compensation and Pension Service pursuant to the provisions of 38 C F R § 3 321(b) and § 4 16(b) for consideration of whether assignment of an extraschedular rating is warranted. 5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs