Citation Nr: 1804168	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-29 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to a compensable evaluation for healed fracture of the distal phalanx of the right middle finger.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Marsh II, Associate Counsel
INTRODUCTION

The Veteran had active service from September 1961 to September 1965.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction over the Veteran's appeal currently resides with the RO in Newark, New Jersey.

The Veteran testified before the undersigned Veterans Law Judge in March 2015. A transcript of the Veteran's hearing has been associated with the record.

This matter was last before the Board in December 2016, at which time it was remanded for further development. The requested development has been completed insofar as possible and complies with the directives of the Board remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now ready for appellate review.

The Board notes that the Veteran filed a claim for TDIU during the pendency of this appeal. The TDIU claim was adjudicated and subsequently denied in September 2015. Accordingly, the Veteran's claim for entitlement to TDIU is not in appellate status. 


FINDING OF FACT

The Veteran's right middle finger is not limited in full flexion to a gap of one inch between the fingertip and the proximal transverse crease of the palm, extension is not limited by more than 30 degrees, and does not result in a finger that is ankylosed.





CONCLUSION OF LAW

The criteria for a compensable rating for healed fracture of the distal phalanx of the right middle finger have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.31, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5226, 5229 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II. Increased Rating

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017).

The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.

Service connection for healed fracture of the distal phalanx of the right middle finger was granted in a March 1999 rating decision, at which time a noncompensable rating was assigned, effective November 23, 1998. 

The Veteran's right middle finger is currently evaluated by analogy under Diagnostic Code 5226, which pertains to ankylosis of the middle finger. As noted below, since the finger in question has a range of motion, ankylosis is not shown on examination and entitlement to increased ratings based on Diagnostic Code 5226 is not shown.

The Board has also considered Diagnostic Code 5229. Diagnostic Code 5229 contemplates limitation of motion of the middle finger. It provides a noncompensable rating for a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A 10 percent rating is afforded for a gap of one inch (2.5 centimeters) 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. 38 C.F.R. § 4.71a, Diagnostic Code 5229. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned).

The Veteran was afforded a VA hand examination in August 2015. The Veteran reported that his entire hand was numb, from the wrist to the bottom of his       fingers. The examination revealed no ankylosis. The examination also showed pain free flexion throughout the full range in the distal interphalangeal joint of the right middle finger. It was noted that the Veteran's gap between the tip of the thumb and fingers and the tips of the fingers and the proximal transverse crease of the palm were normal. The examiner further noted that the Veteran's other complaints affecting other joints in his hands were unrelated to the distal phalanx of the right middle finger.

The Board notes that the Veteran submitted a correspondence from a private physician, Dr. A. N., in March 2015. Dr. A. N., who examined the Veteran in connection with a November 2012 motor vehicle accident (MVA), opined that the Veteran had chronic hand pain and has greater than 10 percent disability in his right hand. The Veteran also submitted a correspondence from Dr. H. C., who opined that he suffered from chronic nerve damage and agreed that the Veteran had greater than 10 percent disability in his right hand.

When this matter was last before the Board in December 2016, it was remanded for further development to reconcile the findings of the private examiners with those of the August 2015 VA exam. Specifically, the Board requested the examiner to provide an opinion as to whether the current complaints of hand pain and numbness were related to the Veteran's service connected right middle finger.

In an addendum opinion, the August 2015 examiner opined that the private examiners' diagnoses concerning the Veteran's right hand were widespread neurological symptoms that were well explained by the November 2012 MVA, in which the Veteran also suffered damage to the cervical spine. The examiner ultimately opined that the Veteran's hand pain is not related to his service connected right middle finger, which is the subject of the instant appeal. 

Thus, the medical evidence of record reveals that at no time during the claim period has the Veteran demonstrated ankylosis of the right middle finger; therefore, a compensable rating under DC 5226 is not warranted. See 38 C.F.R. § 4.71a. As the evidence also reflects that the Veteran's right long finger disability is not manifested by limitation of motion of the third digit with a gap of one inch between the fingertip and the proximal transverse crease of the palm (with the finger flexed) or with extension limited by more than 30 degrees, a compensable rating is not warranted under DC 5229. Id. 

A compensable rating for the Veteran's healed fracture of the distal phalanx of the right middle finger is not warranted under any of the applicable Diagnostic Codes. For these reasons, the Veteran's claim for a compensable rating is denied.


ORDER

Entitlement to a compensable evaluation for healed fracture of the distal phalanx of the right middle finger is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs