Citation Nr: 1805646 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-05 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a disability rating in excess of 10 percent for left hand strain with old fracture, third metacarpal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from July 1983 to July 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran participated in an informal hearing with a Decision Review Officer (DRO) in June 2010. A report of this hearing is of record. He and his spouse testified before the Board at the RO in June 2014. A transcript of this hearing has been associated with the claims file. The claim was remanded for additional development in February 2015 and December 2016 and has been returned now for further appellate action. FINDING OF FACT The Veteran's service-connected left hand strain with old fracture, third metacarpal, manifests with wrist dorsiflexion limited at worst to 30 degrees, wrist palmar flexion limited at worst to 40 degrees, and long finger limited extension of greater than 30 degrees without ankylosis of the wrist or long finger. CONCLUSIONS OF LAW The criteria for a disability rating in excess of 10 percent for left hand strain with old fracture, third metacarpal, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 5214, 5215, 5226, 5229 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in January 2009, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records. The Veteran has not identified any outstanding and available medical treatment records. In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the relevant medical records contained in the Veteran's claims file as well as a complete examination of the Veteran. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided the findings necessary to properly evaluate the Veteran and a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges the Veteran's representative's argument that the May 2017 VA examination should have been conducted during a flare-up and, therefore is inadequate. However, as explained below, the Veteran reported during that examination that he did not have flare-ups, but rather that his symptomatology, including pain and weakness, is constant. As such, the examiner's findings at the time of the examination reflect the severity of the Veteran's service-connected disability. The issue on appeal was previously before the Board in February 2015 and December 2016, when it was remanded for additional development. In accordance with the remand instructions, VA treatment records were added to the record, VA examinations were obtained in 2015 and 2017, and a supplemental statement of the case was issued. Since the record reflects substantial compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Left Hand Strain with Old Fracture, Third Metacarpal The Veteran submitted a claim for an increased rating for his service-connected left hand strain with old fracture, third metacarpal (part of the long finger) disability in November 2008. Therefore, the relevant focus for adjudicating the Veteran's claim is the period beginning one year prior to the claim for increase, November 2007. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2017). The Veteran's left wrist disability is currently rated by analogy under Diagnostic Code (DC) 5215, which pertains to limitation of motion of the wrist. DC 5215 provides for a maximum 10 percent rating for both the minor and major arm where wrist dorsiflexion is limited to less than 15 degrees or where palmar flexion is limited in line with the forearm. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent rating, as in DC 5215, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2017). Normal range of motion of the wrist is 70 degrees of dorsiflexion (extension), 80 degrees of palmar flexion, 20 degrees radial deviation, and 45 degrees ulnar deviation. See 38 C.F.R. § 4.71a, Plate I (2017). 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, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, 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 (2006). The Board notes that throughout the appeal, the Veteran's wrist dorsiflexion has not been shown to be limited to less than 15 degrees nor has palmar flexion been shown to be limited in line with the forearm. The greatest limitation of left wrist dorsiflexion was to 30 degrees and the greatest limitation of palmar flexion was to 40 degrees, as found upon VA examinations in February 2009 and May 2010 respectively. While the Veteran had reported additional factors such as pain, swelling, weakness, fatigue, and incoordination of his hand during those examinations, the examiners both found that left wrist function and motion was not additionally limited by such factors, even following repetitious use. The Board further notes that a May 2017 VA examiner found full range of motion and no functional loss due to the Veteran's reported pain, weakness, or incoordination. During the VA examination, the Veteran also reported that he does not experience flare-ups of his symptoms, but rather his symptoms are constantly present. Therefore, the findings of the 2017 VA examination reflect the severity of the Veteran's left hand/long finger disability, even considering factors such as pain and weakness. As such, the Board notes that the Veteran was rated as 10 percent by analogy under DC 5215 for painful motion of the wrist even though he did not meet the criteria under that specific DC. The Board further notes that a more appropriate DC may have been DC 5229 for limitation of motion of the long finger. The Veteran's service-connected disability involved an old fracture of the third metacarpal, contained in the long finger. DC 5229 provides a maximum schedular 10 percent disability evaluation is assigned where there is limitation of motion of the index or long finger with a gap of one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. While the limitation of motion of the Veteran's long finger has never been shown to result in a gap of one inch, a May 2015 VA examination revealed limitation of extension of the long finger greater than 30 degrees. Although this is the only examination to reveal such limitation of motion of the service-connected long finger, given the Veteran's reported symptoms, his left hand/long finger disability could have been rated as 10 percent under DC 5229. See Butts v. Brown, 5 Vet. App. 532, 539 (1993). Nevertheless, a separate 10 percent disability rating is not warranted under DC 5229 as the Veteran does not meet the criteria for both DC 5215 and 5229, even considering the DeLuca factors. The only other avenues for a disability rating in excess of 10 percent for the left hand/long finger disability involve ankylosis of the wrist or long finger under DCs 5214 and 5226. In this case, however, the VA examinations in February 2009, May 2010, May 2015, and May 2017 have each found that there is no evidence of ankylosis in the left wrist or left, long finger. As such, an increased disability rating in excess of 10 percent is not warranted under either DC 5214 or 5226. The Board notes that all other medical evidence, including VA treatment records, fail to demonstrate symptoms or limitations worse than those found upon or reported during the VA examinations. Regarding neurologic impairment, the Board notes that service connection for left wrist ulnar neuropathy was granted in a currently unappealed August 2017 rating decision. There is no other evidence of neurologic impairment related to the Veteran's left hand/long finger disability. In considering the appropriate disability ratings, the Board has also considered the Veteran's contention that his left hand strain with old fracture, third metacarpal, is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. As such, the Board concludes that the Veteran's service-connected left hand strain with old fracture, third metacarpal, does not more nearly approximate the criteria for the next highest disability rating and, therefore, the claim for a schedular disability rating in excess of 10 percent is denied. 38 C.F.R. §§ 4.3, 4.7. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran's left hand strain with old fracture, third metacarpal, disability has manifested in pain, fatigue, limitation of motion, swelling, and weakness that result in difficulty with, but not the inability to use the left hand with activities such as picking up heavy objects or tying shoes. These manifestations are specifically contemplated by the rating criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against assigning a disability rating in excess of 10 percent in this case. In arriving at the decision to deny a rating in excess of 10 percent, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A disability rating in excess of 10 percent for left hand strain with old fracture, third metacarpal, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs