Citation Nr: 1801624 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-15 787A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date earlier than March 15, 2014, for the award of a 20 percent rating for service-connected left hand disability. 2. Entitlement to an initial rating in excess of 20 percent for service-connected left hand disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service from January 1987 to March 1993, October 2001 to May 2002, and December 2005 to October 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2012 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles. The April 2012 rating decision, in pertinent part, awarded service connection for ankylosis of the left ring finger and assigned a 0 percent evaluation, effective June 23, 2011. The Veteran appealed the rating assigned. See December 2012 Notice of Disagreement (NOD). Thereafter, an April 2014 rating decision terminated the 0 percent evaluation of ankylosis of the left ring finger, effective March 25, 2014, in lieu of a more advantageous service-connected evaluation. Specifically, the April 2014 rating decision granted service connection for ankylosis of the left ring finger with scar and long and little finger ankylosis as secondary to ankylosis of the ring finger and assigned an evaluation of 20 percent, effective March 25, 2014. The Veteran continued his increased rating appeal. He also submitted an NOD as to the effective date of the 20 percent award. See May 2014 VA Form 9. In August 2017 a Board videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a July 2015 VA Form 646, the issue of entitlement to service connection for bilateral hearing loss disability was raised but has not been adjudicated subsequently by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to a rating in excess of 20 percent for service-connected left hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a left hand disability (claimed as fused left ring finger) was received on June 23, 2011. 2. The symptoms of the Veteran's left hand disability have approximated at least favorable ankylosis of the long, ring, and little fingers of the minor hand since the date of receipt of his claim for service connection on June 23, 2011. CONCLUSION OF LAW The criteria for an effective date of June 23, 2011, but no earlier, for a 20 percent disability rating for left hand disability have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.157, 3.400(o)(1), 4.3, 4.71a, Diagnostic Code 5222 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION An April 2012 rating decision, in pertinent part, awarded service connection for ankylosis of the left ring finger and assigned a 0 percent evaluation, effective June 23, 2011. The Veteran appealed the rating assigned. See December 2012 Notice of Disagreement (NOD). Thereafter, an April 2014 rating decision terminated the 0 percent evaluation of ankylosis of the left ring finger, effective March 25, 2014, in lieu of a more advantageous service-connected evaluation. Service connection for ankylosis of the left ring finger with scar and long and little finger ankylosis as secondary to ankylosis of the ring finger was granted with an evaluation of 20 percent, effective March 25, 2014. The Veteran continued his increased rating appeal. He also submitted an NOD as to the effective date of the 20 percent award. See May 2014 VA Form 9. Here, the granting of service connection for ankylosis of the left ring finger with scar and long and little finger ankylosis as secondary to ankylosis of the ring finger was, in effect, a recharacterization of this disability and an increase in rating from 0 to 20 percent as of March 25, 2014. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Ankylosis of the minor little finger, whether unfavorable or favorable, warrants a non-compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5227. Favorable ankylosis of three digits on the minor hand is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5222. A 20 percent rating is provided for favorable ankylosis of the long, ring, and little fingers of the minor hand. Id. Here, the Veteran's claim for service connection was received on June 23, 2011 Service treatment records show that the Veteran injured his left ring finger in January 1991. He had surgery to fuse the distal interphalangeal joint in January 1993. Following service, an October 2011 VA orthopedic examination report notes a decrease in twisting, probing, writing, touching, and expression in the left hand. X-ray studies showed favorable bony ankylosis of the distal interphalangeal joint of the 4th finger. The claims file was not reviewed. While range of motion studies were conducted, the examiner did not discuss the specific medical findings from the Veteran's inservice tendon injury or the specific effects of this injury on the other left fingers. In March 2014 the Veteran underwent a special VA Hand and Fingers examination. The Veteran reported that when he underwent fusion of the distal joint of the left ring finger in service, the surgeon did not advise also repairing the extensor tendon due to complications and poor outcomes. The Veteran reported that as a result, he has had chronic weak grip strength and the inability to make a completely closed fist since service. The examiner noted findings of residuals of a left ankylosed ring finger with secondary decreased range of motion of the left long, ring and little fingers secondary to extensor tendon injury of the left hand. Examination revealed painful limited motion of the left long, ring and little fingers. The VA examiner specifically opined and observed that on isolation of the individual fingers the tendon injury occurred on the dorsal part of the hand, affecting the last three fingers. The hand had increased function when able to use all the fingers in the movement though decreased function and range of motion when the last three fingers were tested individually. During an August 2017 hearing, the Veteran essentially testified that his left hand disability was virtually unchanged from 2011 to 2014. See August 2017 Hearing Transcript pages 5-6. He maintained that the 2011 examination was cursory and the 2014 examination was a more specialized examination. Id. at page 3. After reviewing the record, and resolving reasonable doubt in the Veteran's favor, the Board has determined that an effective date of June 23, 2011, but no earlier, is warranted for a 20 percent disability rating for left hand disability. As noted above, June 23, 2011, is the date of receipt of the Veteran's claim. The symptoms at time of the claim in 2011 were similar, if not identical, to those on VA examination in 2014. Therefore, the Board finds that the Veteran's symptoms have approximated the criteria for at least a 20 percent rating from the date of receipt of the claim in June 2011. ORDER An effective date of June 23, 2011, for the award of a 20 percent rating for service-connected left ring finger disability is granted, subject to the criteria governing the award of monetary benefits. REMAND Based on the award of an earlier effective date in this decision, the Veteran's service-connected left ring finger disability is evaluated as 20 percent disabling effective June 23, 2011. Veteran seeks a higher initial rating for this disability. See December 2012 Notice of Disagreement; August 2017 hearing transcript. The Veteran underwent VA examinations in October 2011 and March 2014. However, these examination reports are inadequate for adjudication purposes because the examiners never reviewed the claims file in conjunction with the examinations. See Green v. Derwinski, 1 Vet. App. 121 (1991). Moreover, in his August 2017 hearing testimony, the Veteran seems to indicate that his left hand disability has gotten worse. He stated that he only uses his thumb and index finger at work, and tucks the other three fingers away because of they are essentially ankylosed now. See August 2017 Hearing Transcript page 3. He also asked that the amputation rule be considered. Id. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95; Snuffer v. Gober, 10 Vet. App. 400 (1997). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A new examination is required to evaluate the current nature and severity of the Veteran's left hand disability. Accordingly, the case is REMANDED for the following actions: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all pertinent, 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 his representative. 2. Contact the Veteran and afford him 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 his representative. 3. After the aforementioned development has been completed, schedule the Veteran for a VA examination to determine the current severity of his service-connected left hand disability. The claims folder, including service treatment records, must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing of the fingers of the left hand must be performed where possible. The examiner should test the range of motion of the fingers of the left hand for pain in active motion, passive motion, weightbearing, and in non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also provide an opinion as to the range of motion for pain throughout the appeal period of the fingers of the left hand in active motion, passive motion, weightbearing, and in non-weightbearing. The examiner should also specify what, if any, additional range of motion loss (in degrees) of the Veteran's left hand are due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain. Further, the examiner must report whether there is ankylosis of any finger of the left hand. If ankylosis is present, the examiner must specifically identify which joints are involved. Lastly, the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hand disability results in loss of use of the left hand (i.e. the Veteran would be equally well served by amputation with prostheses at the site of election). All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Notify the Veteran that it is his 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. 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. 5. Ensure 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). 6. 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, readjudicate the claim. If the claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs