Citation Nr: 18146819 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 14-44 482 DATE: November 1, 2018 ORDER A compensable rating for a service-connected left fifth finger fracture is denied. A separate rating of 10 percent is granted for interference with overall function of the left hand resulting from a service-connected left fifth finger fracture. A higher rating of 20 percent through September 18, 2012 is granted for service-connected duodenitis with gastroesophageal reflux disease (GERD), but a rating higher than 40 percent from September 19, 2012, to November 12, 2014, and 60 percent beginning November 13, 2014, is denied. FINDINGS OF FACT 1. The Veteran’s left fifth finger fracture manifests limited motion, but it does not manifest ankylosis, arthritis, or anything akin to amputation. 2. The Veteran’s left fifth finger fracture interferes with overall function of the left hand by manifesting decreased strength and an angulation deformity. 3. The Veteran’s duodenitis with GERD had continuous moderate manifestations through September 18, 2012, but it did not manifest hematemesis, weight loss, or anything else indicative of definite or severe impairment of health from September 19, 2012, to November 12, 2014. Beginning November 13, 2014, the maximum schedular rating allowable already has been assigned. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a service-connected left fifth finger fracture have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.45, 4.71a Diagnostic Codes 5003, 5156, 5227, 5230 (2018). 2. The criteria for a separate rating of 10 percent for interference with the overall function of the left hand resulting from a service-connected left fifth finger fracture have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.73 Diagnostic Code 5309 (2018). 3. The criteria for a higher rating of 20 percent for the period through September 18, 2012, have been met for service-connected duodenitis with GERD, but the criteria for a rating higher than 40 percent for the period from September 19, 2012, to November 12, 2014, and 60 percent for the period beginning November 13, 2014, have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.114 Diagnostic Codes 7305, 7307, 7346 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to January 1995. This matter is on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA). February 2014 and November 2014 rating decisions increased the rating for service-connected duodenitis with GERD for various periods. This issue remained on appeal, however, because even higher ratings are possible. AB v. Brown, 6 Vet. App. 35 (1993). Additional pertinent evidence added to the claims file after the last adjudication of this matter via a November 2014 statement of the case is reviewed initially by the Board of Veterans’ Appeals (Board) herein. The right to have the Regional Office do so is automatically waived for such evidence submitted by the Veteran or his representative. 38 U.S.C. § 7105(e)(1) (if, as here, there is no written indication to the contrary. Further, he requested waiver with respect to all such evidence. 38 C.F.R. § 20.1304(c). Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Full notice was provided to the Veteran in a December 2010 letter, prior to initial adjudication in the June 2011 rating decision. Full notification additionally was provided to him in a July 2014 letter. VA treatment records are available. So are some private treatment records, and there is no indication of any others that remain outstanding. In January 2011, March 2013, and November 2014, the Veteran underwent pertinent VA medical examinations. He also underwent a pertinent private medical examination in December 2014. Finally, neither he nor his representative has raised any duty to notify or assist deficiency. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (the Board is not required to address procedural arguments that are not raised); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). Higher Ratings Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant’s disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability, or any other point, is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Different ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994). If a disability has worsened, consideration therefore must be given to when the worsening occurred. The period in question for a higher rating begins one year prior to the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Accordingly, the discussion below is limited to this evidence as well as that required to address any arguments raised by the Veteran, his representative, or the evidence. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). 1. Left Fifth Finger Fracture 38 C.F.R. § 4.71a addresses musculoskeletal disabilities. The Veteran’s service-connected left fifth finger fracture is rated pursuant to Diagnostic Code 5230 thereunder. This Diagnostic Code is for limitation of motion of the ring or little finger. It assigns a maximum noncompensable rating for any such limitation, whether of the major (dominant) or minor (non-dominant) hand. Other potentially applicable Diagnostic Codes also must be considered. Diagnostic Code 5227 concerns ankylosis of the ring or little finger. It assigns a maximum noncompensable rating for either favorable or unfavorable ankylosis, whether of the major or minor hand. The note following Diagnostic Code 5227 indicates that consideration is to be given to whether rating as amputation is warranted and whether an additional rating is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Diagnostic Code 5156 is for amputation of the little finger. Without metacarpal resection, at the proximal interphalangeal joint or proximal thereto is assigned a 10 percent rating for the major or minor hand. With metacarpal resection (more than one-half the bone lost) is assigned the maximum 20 percent rating for the major or minor hand. 38 C.F.R. § 4.73 addresses muscle disabilities. Diagnostic Code 5309 thereunder is for Muscle Group IX, which involves the intrinsic muscles of the hand to include the short flexor, opponens, and abductor of the little finger. The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The Note following Diagnostic Code 5309 explains that because the hand is so compact, isolated muscle injuries are rare. Muscle injuries instead are nearly always complicated with injuries of bones, joints, tendons, etc. Rating is based on limitation of motion, with a minimum rating of 10 percent. Finally, Diagnostic Code 5003 is for degenerative arthritis (hypertrophic or osteoarthritis). Other types of arthritis, including traumatic arthritis (Diagnostic Code 5010), are rated the same way. Rating is based on limitation of motion under the appropriate Diagnostic Code. If there is such limitation objectively confirmed by swelling, muscle spasm, or painful motion, etc. but it is noncompensable by that method, a 10 percent rating is assigned for each major joint or group of minor joints affected. Multiple involvements of the interphalangeal, metacarpal, and carpal joints are considered a group of minor joints. 38 C.F.R. § 4.45(f). The Veteran currently is assigned a noncompensable, or zero percent, rating. Based on the evidence, the Board finds that higher rating is not warranted. A compensable rating is not warranted, in other words. The Veteran has reported pain, stiffness, and swelling in his left little finger. Pain during motion and less motion that normal were found in October and November 2010 VA treatment records as well as at the January 2011 and November 2014 VA medical examinations. However, noncompensable is the maximum rating allowable for limitation of motion of the little finger under Diagnostic Code 5230. Consideration of a higher rating for functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not necessary because the Veteran already is in receipt of this maximum allowable rating. Johnston v. Brown, 10 Vet. App. 80 (1997). Further, a higher rating cannot be assigned 38 C.F.R. § 4.59 because it cannot be applied independently of Diagnostic Code 5230. Sowers v. McDonald, 27 Vet. App. 472 (2016). To the extent the VA medical examinations did not comply with the requirements set forth by the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017), which address measurement of limitation of motion and functional loss, there is no prejudice to the Veteran in proceeding with adjudication. That he already is in receipt of the maximum rating allowable indeed is reiterated in this regard. Turning to Diagnostic Code 5227, ankylosis is immobility or fixation of a joint. Dinsay v. Brown, 9 Vet. App. 79 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Veteran has motion, albeit limited, in his left fifth finger. It thus follows that there is no ankylosis. None indeed was found at the January 2011 or November 2014 VA medical examinations, despite the ankylosis diagnosis made at the former. Even if ankylosis had been found, a higher rating cannot be assigned because the maximum allowable is noncompensable. Rating as amputation per the note following Diagnostic Code 5227 next is not warranted. The Veteran’s left fifth finger has no amputation. At the November 2014 VA medical examination, this finger was not found to have such diminished functioning in terms of grasping, manipulation, etc. that he would be equally well served by an amputation with prosthesis. There is no indication otherwise of such diminished functioning, whether attributable to pain or other symptoms (since there is no ankylosis). With respect to rating for resulting limitation of motion of other digits or interference with overall function of the hand, the Veteran has not reported pain or other symptoms in his left thumb, index finger, long finger, or ring finger. He indeed denied pain in these fingers in November 2010 and May 2011 VA treatment records. Motion in them further was normal at the January 2011 and November 2014 VA medical examinations. Nevertheless, the Veteran has reported difficulty driving, mowing the lawn, squeezing, gripping, lifting weights, opening jars and doors, and with fine motor skills like using the computer and tools with his left hand due to pain in his little finger. Decreased strength in this hand, and particularly in this finger of 4/5, was found at the January 2011 VA medical examination. So was decreased dexterity in this hand. The November 2014 VA medical examination found decreased strength of 4/5 in the left hand. Finally, the December 2014 private medical examination found loss of grip strength in this hand. Whether this was frank loss or loss from guarding due to pain in the little finger was not clear to the examiner. This is coupled with a deformity, identified as an angulation abnormality, in this finger noted in a November 2010 VA treatment record, the January 2011 VA medical examination, and the December 2014 private medical examination. There, in sum, is interference with the overall function of the Veteran’s left hand. The Board therefore finds that a separate rating is warranted under Diagnostic Code 5309. More specifically, a separate rating of 10 percent is warranted. Per the note following this Diagnostic Code, rating is based on limitation of motion. It is reiterated in this regard that noncompensable is the maximum rating allowable under Diagnostic Code 5230. Yet the aforementioned note also calls for a minimum rating of 10 percent. To the extent it can be argued that a separate rating pursuant to Diagnostic Code 5307 (Muscle Group VII) or Diagnostic Code 5308 (Muscle Group VIII) is more appropriate, it is notable that the Veteran’s grip strength is only decreased 1 point on a scale of 5 points (4/5). This is commensurate with, at most, a moderate degree of impairment. Both Diagnostic Codes establish a 10 percent rating for such, whether of the dominant or non-dominant hand. No matter which Diagnostic Code is used then, 10 percent is the appropriate separate rating. Turning lastly to Diagnostic Code 5003 (and associated Diagnostic Codes like 5010), a higher rating than noncompensable cannot be assigned because there is no indication of any arthritis. An October 2010 VA treatment record contains a diagnosis of probable osteoarthritis of the Veteran’s left little finger, and a November 2010 VA treatment record diagnosed traumatic arthritis. However, it does not appear that these diagnoses were based on X-rays findings as required. The latter record indeed set forth October 2010 X-ray results, as did the January 2011 VA medical examination. There were no acute findings, and no significant degenerative changes were seen. Neither such changes nor arthritis of any type were mentioned at the November 2014 VA medical examination or the December 2014 private medical examination either. A rating higher than noncompensable for the Veteran’s service-connected left fifth finger fracture, in conclusion, is denied. However, a separate 10 percent rating is granted under Diagnostic Code 5309 for the resulting interference in overall function of his left hand. Each of these determinations was based on the preponderance of the evidence, so there is no benefit of the doubt to afford him. No further issues have been raised. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are raised). 2. Duodenitis with GERD 38 C.F.R. § 4.114 addresses digestive disorders. The Veteran’s service-connected duodenitis with GERD is rated pursuant to Diagnostic Code 7305 thereunder. This Diagnostic Code is for duodenal ulcer. When mild, with recurrent symptoms once or twice yearly, a 10 percent rating is assigned. When moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations, a 20 percent rating is assigned. When moderately severe, a 40 percent rating is assigned. Moderately severe is less than severe but with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. When severe, the maximum rating of 60 percent is assigned. Severe is when there is pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Like above, other potentially applicable Diagnostic Codes also must be considered. Hypertrophic gastritis (identified by gastroscope) is the subject of Diagnostic Code 7307. When chronic, with small nodular lesions and symptoms, a 10 percent rating is assigned. When chronic, with multiple small eroded or ulcerated areas and symptoms, a 30 percent rating is assigned. The maximum rating of 60 percent is assigned when chronic, with severe hemorrhages or large ulcerated or eroded areas. As a complication of many disabilities, however, rating is based on the underlying disability. Diagnostic Code 7346 concerns hiatal hernia. It assigns a 10 percent rating when there are two or more of the symptoms for a 30 percent rating of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum rating of 60 percent is reserved for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. The words mild, moderate, moderately severe, and severe are not defined in the aforementioned Diagnostic Codes, where applicable, or in the Rating Schedule in general. The phrase impairment of health also is not defined. Ratings under Diagnostic Codes 7301-7329, 7331, 7342, and 7345-7348 finally cannot be combined. Instead, a single rating is assigned under the Diagnostic Code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants. 38 C.F.R. § 4.114. Currently, the Veteran is assigned a noncompensable, or zero percent, rating through September 18, 2012, a 40 percent rating from September 19, 2012, to November 12, 2014, and a 60 percent rating beginning November 13, 2014. Based on the evidence, the Board finds that higher rating is warranted for the period through September 18, 2012. A 20 percent rating specifically is warranted under Diagnostic Code 7305 for this period. During it, the Veteran reported having constant upset stomachs. He indicated that he would lay in bed until the abdominal pain passed and that this pain had changed his life and the lives of his family. In this regard, he noted that required different food from his family to include nothing with seasoning and nothing spicy. VA treatment records and the January 2011 VA medical examination additionally convey that the Veteran was on a low to no caffeine, tobacco, and alcohol diet. These sources also convey that he took medication frequently, if not continuously, to control his symptoms. A higher rating cannot be denied based on the relief provided by medication when those effects are not contemplated by the applicable Diagnostic Code. Jones v. Shinseki, 26 Vet. App. 56 (2012). The rating criteria for a 60 percent rating under Diagnostic Code 7305 references the degree of relief achieved by standard ulcer therapy. To the extent this is not sufficient contemplation, particularly when considering lower ratings, the Veteran’s symptoms presumably would have been worse but for medication. He indeed reported that he had difficulty sleeping at night due to abdominal pain when he did not take his medication. VA treatment records show that his weight remained relatively stable notwithstanding this pain. However, he reported in an April 2012 record having one instance of black stool the previous November. There otherwise is no indication of melena (blood in stool), diarrhea, pyrosis (heartburn or reflux), nausea, vomiting, hematemesis (vomiting blood), and anemia. No incapacitation was found at the examination. In sum, the Veteran had continuous abdominal pain that was significant enough to cause him to lie down during the day even with medication which presumably would have been worse without it. This pain further woke him at night without medication. This equates with continuous moderate manifestations, particularly with accompaniment of the one episode of black stool, required for a 20 percent rating. Absent anemia, weight loss, and incapacitation, the next highest rating of 40 percent cannot be assigned. Diagnostic Code 7307 cannot be used to assign a rating higher than 20 percent either, as gastritis was not identified. Finally, Diagnostic Code 7346 cannot be used to assign a rating higher than 20 percent because there was no dysphagia, pyrosis, regurgitation, substernal or arm or shoulder pain, or anything else indicating a considerable impairment of health accompanying the Veteran’s persistently recurrent epigastric distress. Although it does not contemplate the ameliorative effects of medication, there is no indication that any of these symptoms would have been present but for the use of medication. The Board next finds that a rating higher than 40 percent is not warranted for the period from September 19, 2012, to November 12, 2014. The Veteran reported some heartburn, especially at night, as his primary symptom. He also reported some abdominal discomfort, some nausea, and feeling like he will vomit after eating anything. Finally, he reported only partial relief from medication. The March 2013 VA medical examination found no incapacitation but at least four episodes of severe symptoms averaging 10 or more days each. There was no indication of melena, vomiting, hematemesis, anemia, or weight loss at that time. However, private treatment records show that the Veteran was admitted to the hospital for four days in March 2014 for melenic stools and secondary anemia. These records as well as 2014 VA treatment records reflect that his weight was stable despite intermittent melena and actually vomiting occasionally to include at night into his continuous positive airway pressure (CPAP) machine. In sum, the Veteran’s disability clearly worsened. This worsening is revealed only as of the March 2013 VA medical examination. September 19, 2012, was assigned as the effective date for a higher rating, however, because a statement in support of his appeal was misconstrued as a new claim. It is a generous demarcation date for the staged rating, in other words. It nevertheless will not be disturbed. While the Veteran had pain only partially relieved by medication along with occasional vomiting and melena, he had anemia only once and no weight loss/material weight loss or hematemesis. He further did not have anything else indicating a definite or severe impairment of health. The next highest rating of 60 percent therefore cannot be assigned under Diagnostic Codes 7305 or 7346. Although gastritis was identified by diagnostic testing in March 2014, the number of lesions or ulcerated or eroded areas was not noted. Rating is to be for the underlying condition, not this complication, in any event. The Board last finds that a rating higher than 60 percent is not warranted for the period beginning November 13, 2014. Daily heartburn significant enough to distract from activities and inhibit the performance of heavy exertional activities as well as awakening for night regurgitation once a week have been reported by the Veteran. Per the VA medical examinations on the aforementioned date, he additionally has persistently recurring epigastric distress, epigastric tenderness, reflux, substernal and abdominal pain, transient nausea, recurrent melena, some anemia, and material weight loss. He indeed was down to 220 pounds from a baseline of 235 pounds. His disability, in sum, worsened particularly given this latter finding. This worsening has been recognized by the assignment of the maximum rating allowable under Diagnostic Code 7305 or 7346. It is reiterated that Diagnostic Code 7307 calls for rating pursuant to them. In any event, the maximum rating allowable under it also is 60 percent. (Continued on the next page)   A higher rating of 20 percent for the period through September 18, 2012, in conclusion, is granted for the Veteran’s service-connected duodenitis with GERD. However, a rating higher than 40 percent for the period from September 19, 2012, to November 12, 2014, and a rating higher than 60 percent for the period beginning November 13, 2014, is denied for this disability. All these determinations were based on the preponderance of the evidence, so there is no benefit of the doubt to afford him. No further issues have been raised. Doucette, 28 Vet. App. at 366. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel