Citation Nr: 1752597	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO. 14-01 870	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to an initial compensable rating for a right little finger strain.

2. Entitlement to an initial rating in excess of 10 percent for a right ankle strain.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel





INTRODUCTION

The Veteran served on active duty from March 2006 to January 2013, including service in combat.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the matter currently rests in Muskogee, Oklahoma.

In November 2016, the Veteran failed to appear, without explanation, for a Board hearing. The RO sent the Veteran a letter in September 2016 notifying him of the hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2016).

The issue of entitlement to an initial rating in excess of 10 percent for a right ankle strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Throughout the period of appeal, the Veteran's right little finger strain has been manifested by pain and a gap less than 1 inch wide between the fingertip and proximal transverse crease of the palm.


CONCLUSION OF LAW

The criteria for an initial compensable rating for a right little finger strain have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5003, 5230 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

This appeal arises from an initial grant of service connection and assignment of a disability rating. When an initial rating appeal comes before the Board following a decision to grant service connection and assign an initial rating, no additional VCAA notice is required. Once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159 (b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).

With regard to the duty to assist, the Veteran's post service treatment records have been secured. The Veteran was also afforded a VA medical examination in December 2012. As stated in Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. The Board acknowledges that the examiner did not test for passive motion or for pain with weight bearing and non-weight bearing. However, the Board finds that such errors are harmless. The Veteran is currently receiving the highest schedular rating for his right little finger strain, and application of Correia cannot result in a higher schedular rating. Moreover, the opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As such, the Board finds the examination adequate for the purpose of rendering a decision on the Veteran's right little finger strain. Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining relevant records and a VA examination, has been met. 38 C.F.R. § 3.159(c)(4) (2017).

Legal Criteria & Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 
38 U.S.C.A. § 1155. 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 active military service and their residual conditions in civil occupations. 
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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.
Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2016). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017).

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Service connection for a right little finger strain was granted in the January 2013 rating decision. The RO assigned noncompensable disability rating and an effective date of January 20, 2013, the day of the Veteran's separation from active service.  Limitation of motion of the little finger is rated under Diagnostic Code 5230. The Diagnostic Code provides a noncompensable rating for any limitation of motion. 38 C.F.R. § 4.71a, Part 4, Code 5230.

More generally, 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 
38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. 

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 
38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40.

Prior to his separation from service, the Veteran underwent a VA examination to evaluate his right little finger strain. See December 2012 Hand and Finger Conditions Disability Benefits Questionnaire. The Veteran complained of sharp pain and difficulty grasping objects. An ROM test of the right little finger revealed a gap between the fingertip and the proximal traverse crease of the palm less than 1 inch wide. The examiner noted that weakened movement and pain on movement were contributing factors of the disability. No ankylosis or other limitations were noted. In addition, the Veteran denied having flare-ups. An imaging study performed in connection with the examination revealed no evidence of fracture or other significant bone or soft tissue abnormality of the right hand. See December 2012 VA radiology interpretation report.

According to a July 2013 VA treatment note, the Veteran reported increased functional use of his right little finger with less pain. See July 2013 VA TBI treatment plan note.  In his VA Form 9, the Veteran reported that his right little finger does not bend when he tries to lift things. See December 2013 VA Form 9.

Upon review of the record, the Board finds that the competent and credible evidence of record establishes that criteria for an initial compensable rating for a right little finger strain have not been met for any period. The Board acknowledges that the December 2012 VA examination revealed a gap between the fingertip of the right little finger and the proximal traverse crease of the palm less than 1 inch wide. There is no evidence to doubt the credibility of the examiner. However, the rating schedule contemplates such a limitation as it specifically provides a noncompensable rating for any limitation of motion. The examiner also noted painful motion of the right little finger. While application of 38 C.F.R. § 4.59 would thereby entitle the Veteran to the minimum compensable rating for the right little finger, Diagnostic Code 5230 does not provide a minimum compensable rating. Finally, the medical evidence of record does not reflect any arthritis affecting the right little finger. Therefore, entitlement to a compensable rating under Diagnostic Code 5003 is also not warranted for the Veteran's little right finger strain.

In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102.

The Board has also considered an extraschedular evaluation under 38 C.F.R. 
§ 3.321 (b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran has not asserted, and the evidence does not show, that his service-connected right little finger strain is not adequately contemplated by the schedular rating criteria. Therefore, discussion of whether an extraschedular rating must be considered is not necessary. Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

ORDER

Entitlement to an initial compensable rating for a right little finger strain is denied.

REMAND

In Correia, 28 Vet. App. 158, 170 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain ROM testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a test is not conducted, the examination should explain why such test was not necessary.

As discussed above, the December 2012 VA examination did not include testing of passive motion or pain in weight bearing and non-weight-bearing. See December 2012 Hand and Finger Conditions Disability Benefits Questionnaire. In addition, the examiner did not provide an explanation as to the reason(s) that the tests was(were) not necessary. Therefore, with respect to the Veteran's right ankle strain, the Board finds that the VA examination of record is inadequate under the standard set forth in Correia, supra, and that a remand is warranted for a VA examination that tests the ROM in active motion, passive motion, weight-bearing, and non-weight-bearing motions, of the his right ankle. 

The Veteran is hereby notified that it is his responsibility to report for the requested examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2016).

Accordingly, the case is REMANDED for the following action:

1. With any required assistance of the Veteran, obtain any outstanding VA and/or private medical records and associate them with the claims file.

2. Following completion of the above, afford the Veteran a VA examination to determine the current severity of the service-connected right ankle strain. The claims folder should be made available to the examiner for review prior to the examination, and the examiner should acknowledge such review in the examination report.

As part of this examination, the examiner must evaluate the range of motion for pain in both active motion and passive motion, as well as in weight-bearing and nonweight-bearing scenarios for the ankles. The examiner must specifically identify the points, if any, at which pain begins. If any such test is not conducted, the examiner must explain why such test was not necessary.

The examiner must also note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups.

The examiner must also state whether pain could significantly limit functional ability during flare-ups or when the knees and hips are used repeatedly over a period of time. This determination should be expressed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.

A complete rationale must be given for all opinions and conclusions expressed. 

The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so.  Also, if the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made.
3. Thereafter, readjudicate the issue remaining on appeal- entitlement to an initial rating in excess of 10 percent for a right ankle strain. If this benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order.

No action is required of the Veteran until he is notified by VA. However, he is again advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood, 1 Vet. App. at 190. His failure to help procure treatment records, for example, may impact the determination made. His failure to report for a VA medical examination may have the same impact. 38 C.F.R. § 3.655 (2016). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court are to be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). 




______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs