Citation Nr: 18142774 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-06 845 DATE: October 16, 2018 ORDER The claim of entitlement to an initial, compensable rating for lipoma of scalp, status post removal, is dismissed. REMANDED The claim of entitlement to an initial, compensable rating for right fifth metacarpal fracture and distal interphalangeal degenerative disease (right fifth finger disability) is remanded. FINDING OF FACT During the February 2018 Board hearing, the Veteran expressed his desire to withdraw from appeal the claim for an initial, compensable rating for lipoma of scalp, status post removal. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the claim for an initial, compensable rating for lipoma of scalp, status post removal, are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to December 2006. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, granted service connection for, inter alia, a right fifth finger disability and a lipoma of the scalp, status post removal. Both disabilities were assigned noncompensable (zero percent) evaluations. In September 2013, the Veteran filed a notice of disagreement (NOD) with the initially assigned noncompensable ratings. In May 2014, the RO issued a rating decision, wherein it, inter alia, continued the noncompensable ratings assigned for the Veteran’s right fifth finger disability and the lipoma. A statement of the case (SOC) was then issued in January 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in February 2015. Regarding the Veteran’s Form 9, it would appear that the Veteran had initially checked the box indicating his desire to appeal all issues listed on the SOC. That checkmark was then crossed out and the Veteran checked the box stating that he was only appealing the issues of osteoarthritis, left knee, deformed fifth metacarpal, right hand, and sleep insomnia. Although the July 2013 rating decision had also awarded service connection for various left knee disabilities, the Veteran had not filed an NOD as to any aspect of those grants. There is also no SOC addressing the left knee disabilities; as such, the Veteran’s Form 9 with respect to any left knee issue is not valid. The same goes for the claim for service connection for depression with insomnia, which was denied by the RO in October 2014. In July 2018, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) initial consideration. 38 C.F.R. § 20.1304. The Board notes that during the pre-hearing there was some discussion as to whether any claims concerning the Veteran’s left knee disabilities were before the Board. As noted, the Veteran did not disagree with the initial ratings assigned in connection with his awards of service connection for left knee disabilities. The record also shows that an August 2017 rating decision addressed the Veteran’s ratings for his left knee lateral instability and left knee osteoarthritis. The Veteran did file an NOD as to that decision, which NOD was acknowledged by the RO in August 2018. Accordingly, as the post-decision review process has begun on those matters in an attempt to resolve the matters, they are not yet ripe for appellate review. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the Veteran’s July 2018 hearing, the Veteran expressed his desire to withdraw his appeal as to the claim for a compensable rating for his service-connected lipoma of the scalp, status post removal. The Veteran’s desire to withdraw his appeal as to this claim is recorded in the hearing transcript. In Acree v. O’Rourke, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. 891 F.3d 1009 (Fed. Cir. 2018). During the 2018 hearing, the Veteran’s attorney stated explicitly that no testimony regarding the lipoma rating claim would be presented. When asked by the undersigned whether the that issue was being withdrawn, or whether the Veteran simply did not want to provide testimony on that issue, the Veteran’s representative stated, unambiguously: “We’re withdrawing the appeal.” Although no specific discussion regarding consequences of withdrawal took place, the Board points out that in his VA Form 9, it would appear as though the Veteran did not intend to perfect an appeal as to that issue. The Board thus finds his subsequent withdrawal of the appeal from appellate consideration demonstrates a full understanding of the consequences of withdrawing a claim, as it would not appear that the Veteran desired to have that claim decided by the Board. As the Veteran has expressed his desire to withdraw his appeal before the Board was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to an initial compensable rating for service-connected lipoma of the scalp. Accordingly, the Board does not have jurisdiction to review the appeal as to that matter, and it must be dismissed.] REASONS FOR REMAND With respect to the Veteran’s right fifth finger disability, the Veteran has a history of incurring a fracture of the of the right fifth metacarpal during service in 2006. The AOJ has rated this disability as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5230. The applicable diagnostic codes (DC 5227 and 5230) provide for only a noncompensable rating, even when there is ankylosis of the joint. The Board observes that the provisions of 38 C.F.R. § 4.59 establish that a veteran is entitled to “at least the minimum compensable rating for the joint” for such symptomatology as pain that limits motion to a noncompensable degree. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, the applicable diagnostic codes (DC 5227 and 5230) provide for only a noncompensable rating, even when there is ankylosis of the joint. If a veteran is receiving the maximum disability rating allowable for a particular disorder, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, in Johnston, the Court indicated that where the veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because a higher schedular rating required ankylosis). Notwithstanding the above, it is significant to note that DC 5003 provides that when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. However, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The Veteran was first afforded a VA hand and finger examination in May 2013. X-rays conducted as part of that examination revealed degenerative arthritis of the right hand. However, there was no objective evidence of painful motion observed during the examination. The Veteran was again examined in April 2014. Notably, the examiner stated that the degenerative changes of DIP joints are likely not related to 5th metacarpal fracture, as location of degenerative changes are distal to the site of fracture, and degenerative changes are on several digits at DIP joint, this is characteristic of garden variety degenerative changes due to aging. The examiner further indicated no evidence of painful motion, but stated that “it is conceivable that pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time.” The Veteran also submitted a VA hand and finger conditions disability benefits questionnaire, which was completed by his private physician in August 2017. Notably, the physician indicated pain on motion of the Veteran’s right fifth finger. However, the physician also indicated that imaging studies were performed, but did not indicate evidence of arthritis or otherwise record a diagnosis of arthritis. The physician did note an additional diagnosis of torn ligaments of the right fifth fingers. The Veteran was also afforded a Board hearing in July 2018, at which time he testified that he experiences daily pain and stiffness in his right fifth finger. He also reported some swelling and difficulty grasping objects. When describing the extent of his pain, the Veteran reported pain from his right fifth finger to the midpoint of his palm. He further indicated swelling and pain in the right ring finger, and stated that experiences numbness in the fourth and fifth digits of his right hand. Lastly, the Veteran indicated a worsening of symptoms and a decrease in functionality of his right fifth finger since last examined by VA. Overall, the Board finds it necessary to remand the claim of entitlement to an initial compensable rating for right fifth finger disability for further medical development. This is so because there is question as to whether the evidence of record accurately reflects the nature of the Veteran’s service-connected condition. Indeed, while a compensable rating would be warranted if there is objective evidence of painful motion, the only medical professional to observe painful motion was the Veteran’s private physician. However, that physician did not indicate x-ray evidence of arthritis. There is also a question as to whether additional fingers are involved and/or whether there is any muscle or neurological impairment. Accordingly, in light of the Veteran’s testimony and the historical record of treatment and complaints, the Board finds that further examination is warranted to identify all residuals of the Veteran’s service-connected right fifth finger disability, including the effects, if any, of the other digits in his right hand and his overall right hand use. Prior to undertaking action responsive to the above with respect to the rating claims on appeal, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran receives ongoing VA care from the San Diego Healthcare System. Records from that health care system dated through September 2018 have been associated with the claims file. However, more recent records from this facility may exist. As such, the AOJ should obtain all outstanding VA records dated since September 2018, following the provisions of 38 C.F.R. § 3.159(c). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. The matter is hereby REMANDED for the following action: 1. Obtain from the San Diego Healthcare System all outstanding records of evaluation and/or treatment of the Veteran, dated since September 2018. Follow the procedures of 38 C.F.R. § 3.159 for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. 3. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from any contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate medical professional, for evaluation of his service-connected right fifth finger disability. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The examiner must provide a detailed description of any signs and symptoms associated with right fifth finger disability, to include identifying whether there is x-ray evidence of arthritis. The examiner should also consider whether the Veteran’s service-connected right fifth finger disability affects the functioning of any other digits of the right hand and/or the use of the right hand. The examiner should take into account the Veteran’s testimony of pain and numbness in his adjacent digit and his weakened right-hand grip strength. The examiner should conduct range of motion testing of the right fifth finger, and render specific findings with respect to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also state whether there is evidence of a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible for the right fifth finger. He/she should also indicate whether the Veteran has actual or comparable ankylosis of the right fifth finger, and if so, whether any ankylosis (or comparable ankylosis) is favorable or unfavorable. Considering all clinical findings and assessments, the examiner should specifically indicate the extent to which the residuals of the Veteran’s right fifth finger impacts the function of the right hand, to include whether such residuals actually or effectively result in loss of use of the hand. Additionally, the examiner should indicate whether such residuals result in function comparable to amputation of the right fifth finger, and if so, the level at which such amputation would be effective (i.e., with or without metacarpal resection). All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel