Citation Nr: 1802205 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include alcohol dependence, anxiety, depression, and sleep disturbance. 2. Entitlement to an initial compensable disability rating for service-connected left thumb fracture with residual strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1991 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin, that granted service connection for left thumb fracture with residual strain and assigned an initial noncompensable disability rating, effective as of August 2, 2012; and that, in pertinent part, denied service connection for a psychiatric disorder. The Veteran expressed disagreement with the initial disability rating and with the denial of service connection for a psychiatric disorder and perfected a substantive appeal. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. The issues of service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left thumb disability does not result in left thumb ankylosis or a gap of one inch or more between the thumb pad and the fingers. CONCLUSION OF LAW The criteria for a compensable disability rating for service-connected left thumb fracture with residual strain have not been met. 38 U.S.C.§ 1155 (West 2012); 38 C.F.R. §§ 4.71a, Diagnostic Code 5228 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in August 2012 and January 2013 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. This is an appeal arising from a grant of service connection in a March 2013 rating decision; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Disability Rating For Left Thumb Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, 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. 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 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The diagnostic codes pertaining to impairment of the hand and fingers apply different disability ratings based upon whether the major or minor arm is affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5213 through 5230. The diagnostic code applicable in this case, however, Diagnostic Code 5228, which pertains to limitation of motion of the thumb, applies the same rating for both the minor and major hand. Under Diagnostic Code 5228, where there is limitation of motion of the thumb with a gap of less than one inch (2.5 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a noncompensable disability rating is warranted. With a gap of one to two inches (2.5 to 5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 10 percent disability rating is warranted. With a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a maximum 20 percent disability rating is warranted. 38 C.F.R. § 4.17a, Diagnostic Code 5228. The Veteran asserts that his left thumb disability is more disabling than reflected by the currently assigned noncompensable disability rating. In correspondence dated in October 2014, the Veteran's representative indicated that the Veteran contends he has functional impairment of the left thumb that on extended use in the course of daily living results in limitation of motion sufficient to meet the requirements for at least a 10 percent disability rating. A private medical record from V. V. R., M.D., dated in August 2012 shows that a history of a distal fracture of the left thumb was indicated, which was said to have been treated conservatively with complete resolution. A VA examination report dated in February 2013 shows that the Veteran reported injuring his left thumb while playing rugby during active service. X-rays at the time showed a fractured metacarpal head. It was casted for two months. He added that since then, he has had pain of the carpalmetacarpal joint with stressful use. The Veteran did not report that flare-ups impacted the function of the hand. He was said to be right hand dominant. Physical examination revealed limitation of motion or evidence of painful motion of the left thumb. There was no gap between the thumb pad and the fingers. The Veteran was able to perform repetitive use testing, but there was no additional limitation of motion posttest. Functional impairment following repetitive use testing was said to be manifested by pain on movement. There was also tenderness or pain to palpation for the joint or soft tissue of the left thumb. Muscle strength was within normal limits, and there was no ankylosis of the thumb. There were no scars and no use of an assistive device. The disability was said not to impact occupational functioning. Having carefully considered the evidence of record, the Board finds that the criteria for the assignment of the next higher 10 percent disability rating have not been met. In this regard, the Veteran's left thumb disability does not result in a compensable disability rating. The VA examiner in February 2013 reported that the Veteran did not have any scar or functional loss. Objective physical examination did not show that there was ankylosis of the left thumb. Finally, while the Veteran's disability was manifested by pain and tenderness, motion was limited to less than a gap of one inch between the thumb and the fingers. While the Veteran may have some difficulty with the movement of his left thumb, the evidence of record simply does not establish that this impairment is sufficient to support a compensable disability rating. Moreover, the August 2012 private medical record from Dr. R. showed that the left thumb fracture had been treated conservatively with complete resolution. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. As noted above, this is an initial rating case, and consideration has been given to "staged ratings" since service connection was made effective (i.e., different percentage ratings for different periods of time). Fenderson, 12 Vet. App. at 119. However, there appears to be no identifiable period of time since the effective date of service connection, during which the left thumb disability warranted a compensable disability rating. ORDER An initial 10 percent disability rating for service-connected left thumb fracture with residual strain is denied. REMAND Unfortunately, a remand is required in this case as to the issue of service connection for a psychiatric disorder. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). The Veteran asserts that he has a current psychiatric disorder that was first manifested during his period of active service. He contends that he exhibited symptoms of anxiety, anger management, and depression for which he was treated during active service, and that he has continued to experience related symptoms ever since. A review of the Veteran's service treatment records confirms that he was treated for stress management during service and a diagnosis of passive-aggressive personality disorder was suggested. Service treatment records also show an incident wherein he was treated for an injury after being jumped in a bathroom at a local club. His service personnel records show that he was counseled for stress management, that he was arrested for driving under the influence of alcohol, and that he underwent stress management training. Following service, private medical records from Lutheran Counseling and Family Services dated in August 2012 shows that the Veteran was diagnosed with generalized anxiety disorder. A VA examination report dated in February 2013 shows that a history consistent with that as set forth above was reported by the Veteran. The VA examiner indicated that the Veteran exhibited symptoms of suspiciousness, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The VA examiner concluded that the Veteran did not meet the criteria for a diagnosis of any psychiatric disorder. The VA examiner, however, did not address the August 2012 diagnosis of generalized anxiety disorder. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, an additional medical opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The AOJ shall afford the Veteran a VA psychiatric examination with an appropriate physician so as to determine the precise nature and etiology of the asserted psychiatric disorder. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner is directed to provide an opinion as to whether the Veteran meets the criteria for a diagnosis of a psychiatric disorder. In doing so, the examiner is directed to address the August 2012 diagnosis of generalized anxiety disorder, and reconcile any differences of opinion. If the Veteran is diagnosed with a psychiatric disorder, the examiner shall also provide an opinion as to whether any diagnosed psychiatric disorder at least as likely as not had its onset in service; was manifested by a psychosis within one year following separation from service; or is otherwise the result of a disease or injury in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. A thorough explanation for any opinion offered must be provided. If the examiner is unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for this determination should be offered and any outstanding evidence that would enable the examiner to provide the opinion should be identified. 3. The AOJ will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. 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). ______________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs