Citation Nr: 1804153 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable initial rating for residuals of a laceration of the distal interphalangeal joint with scar of the right fifth finger. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California. This appeal was originally presented to the Board in July 2016, at which time it was remanded for additional development. As will be discussed below, the required development has been completed to the extent possible and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's residuals of a laceration of the distal interphalangeal joint of the right little finger are manifested by limitation of motion of the right fifth finger. CONCLUSION OF LAW The criteria for a compensable rating for residuals of a laceration of the distal interphalangeal joint of the right little finger have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded a VA medical examination for the disability on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. As noted above, this appeal was remanded by the Board in July 2016, at which time a new VA examination was ordered. The Board found the prior June 2012 VA examination did not provide full and contemporaneous findings regarding the Veteran's service-connected disability. Such an examination was scheduled for September 2016; however, the Veteran failed to appear for examination and, to date, has offered no explanation for his absence. VA's duty to assist in developing the facts and evidence pertinent to a veteran's claim is not a one-way street, and it is the responsibility of claimants to cooperate with VA with regard to development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of the Veteran's cooperation with VA's attempts to provide him with a more recent examination, his claim will be decided on the evidence of record. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to VA's duty to assist). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. The Veteran seeks a compensable initial rating for residuals of a laceration of the distal interphalangeal joint with scar of the fifth finger. He contends this disability results in limitation of motion of several fingers of his hand, and a higher initial rating is thus warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 required for that rating. 38 C.F.R. § 4.7. The Veteran's finger disability is currently rated as noncompensable under Diagnostic Code (DC) 5230, for limitation of motion of the ring or little (fifth) finger. This code provides a noncompensable rating for any limitation of motion of the ring or little finger of the major or minor hand. This noncompensable rating is the maximum schedular rating available under this code, as DC 5230 does not provide for a compensable evaluation. Other diagnostic codes for consideration include DC 5227, which also only provides a 0 percent (maximum) rating for unfavorable or favorable ankylosis of the ring or little finger, and DC 5223, which provides for a maximum 10 percent rating when there is favorable ankylosis of long and little fingers, or the ring and little fingers. A Note to DC 5227, in pertinent part, states that VA is to consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall functioning of the hand. In the present case, the preponderance of the evidence is against an award of a compensable initial rating under any applicable criteria for the service-connected right little finger disability. Specifically, the Veteran was most recently afforded a VA examination in June 2012. He reportedly injured his right hand while working in the galley aboard ship during service. Since that time, he has experienced limitation of motion of the right little finger, according to the Veteran's report. On physical examination, the Veteran had some limitation of motion of the right little finger, but no other fingers of the right hand. A small scar was also present, but this scar was not large, painful or unstable. The examiner did not find that the impairment of the right little finger was equivalent to amputation of the finger. X-rays of the hand were negative for any fracture or dislocation, and degenerative changes were minimal. In light of the above, a compensable initial rating is not warranted under DC 5230 or any other applicable rating criteria. DC 5156 is not applicable, as there was no indication of total loss of use of the finger such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, DC 5156. Additionally, while there is x-ray evidence of minimal degenerative changes, the service-connected right little finger does not constitute a major joint; hence, Diagnostic Codes 5003 and 5010 for arthritis are not appropriate, as they would not support a compensable initial rating. 38 C.F.R. § 4.71a, DC 5003, 5010. Finally, the Board has considered a rating decision based on painful motion under 38 C.F.R. § 4.59. Generally, when painful motion is present, the minimum compensable rating for the joint should be assigned. However, in this case, there is no level of disability that warrants a compensable rating under DC 5230. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). Therefore, a compensable rating for painful motion cannot be assigned in this case. See id.; 38 C.F.R. § 4.59. Finally, the record does not suggest and he has not asserted that his right little finger disability, in and of itself, results in symptoms unusual in nature or not contemplated by the schedular criteria, and extraschedular consideration is therefore not warranted. In conclusion, the Board finds that a compensable initial rating is not warranted for the service-connected right little finger disability. The preponderance of the evidence is against the claim, there is no doubt to be resolved, and an increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable initial rating for residuals of a laceration of the distal interphalangeal joint of the right little finger is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs