Citation Nr: 18147664 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-46 458 DATE: November 6, 2018 ORDER Service connection for dental trauma for the purpose of obtaining VA outpatient dental treatment is granted. A rating in excess of 10 percent for degenerative joint disease of the right middle finger is denied. A separate 10 percent rating for degenerative joint disease of the right index finger is granted, subject to the rules and regulations governing the payment of VA monetary benefits. FINDINGS OF FACT 1. Service connection for a dental disorder was denied by the Regional Office (RO) in a December 1997 rating action. The Veteran was notified of this action and of his appellate rights, but withdrew his appeal. 2. Since the December 1997 decision denying service connection for a dental disorder, an intervening change in law or regulation created a new basis of entitlement to the benefit. 3. The Veteran’s missing teeth are shown to be replaceable by suitable prosthesis. 4. The Veteran sustained trauma of teeth numbered 7, 8, 9, and 10 during service in June 1947. 5. Throughout the appeal, the Veteran’s right middle finger was manifested by limitation motion and evidence of pain on motion and palpation as well as ankylosis of the DIP joint; in addition, a 1 cm gap was noted between the middle finger and the proximal transverse crease of the palm and decreased grip strength on examination in January 2018. 6. Throughout the appeal, the Veteran’s right index finger was manifested by limitation motion and evidence of pain on motion and palpation as well as a 1 cm gap that was noted between the index finger and the proximal transverse crease of the palm and decreased grip strength on examination in January 2018. CONCLUSIONS OF LAW 1. A revision in the law subsequent to the December 1997 decision of the RO, which denied service connection for a dental disorder, provides a basis upon which the claim for service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for a dental disorder for compensation purposes is not warranted. 38 U.S.C. §§ 1110, 1131; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Residuals of dental trauma of teeth numbered 7, 8, 9, and 10 were incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.381, 17.161. 4. The criteria for a rating in excess of 10 percent for degenerative joint disease of the right middle finger have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (Code) 5229. 5. The criteria for a separate rating of 10 percent for degenerative joint disease of the right index finger have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1941 to September 1945, from November 1945 to November 1948, and from November 1948 to June 1962. 1. Entitlement to service connection for dental trauma for the purpose of obtaining VA outpatient dental treatment. Service connection for a dental disorder was previously denied by the RO in a December 1997 rating decision. The denial was based on a finding that the Veteran had not submitted a well-grounded claim for compensation benefits for dental disability. While the Veteran initially appealed this determination, by correspondence dated in June 1999, the Veteran withdrew his appeal. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). Where there is an intervening change in law or regulation that creates a new basis of entitlement to the benefit, the claim may be reviewed on a de novo basis. Spencer v. Brown, 4 Vet. App. 283 (1993). In this case, the December 1997 denial was based upon a finding that the claim was not well grounded. In 2001, there was a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See, 38 U.S.C. §§ 5102, 5103, 5103, 5107. This law, among other things, eliminated the concept of a well-grounded claim, and redefined the obligations of VA with respect to the duty to assist. The new law also included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29, 2001. The Board finds that the implementation of the VCAA provides a new basis upon which the prior denial may be revised. As such, de novo review is appropriate. The Veteran contends that he sustained an injury of his teeth during service for which a dental prosthesis was provided. He has stated that he wishes to have new dentures. The Board must address all issues reasonably raised by a liberal reading of the record; consistent with this principle, a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 305-306 (1993). In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in currently demonstrated chronic disability was incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable evaluation is warranted. 38 C.F.R. § 4.150, Code 9913. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment under 38 C.F.R. § 17.161. The Board notes that a February 2017 VA dental examination shows that the Veteran’s missing teeth are replaced by dentures. Here, as the Veteran’s missing teeth are shown to be replaceable by suitable prosthesis, service connection for compensation purposes is not warranted. As such, there is no legal basis upon which to grant any claim for compensation that may be sought, and the claim on appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As to each noncompensable service-connected dental condition, a determination will be made as to whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(a)(3)(4). The significance of finding a dental condition is due to service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c). Review of the Veteran’s service treatment records (STRs) shows that in June 1947, he sustained an injury where he was kicked in the mouth that involved loss of teeth that are now designated as teeth numbered 7, 8, 9, and 10. On examination in November 1948, a fixed bridge was noted between teeth numbered 6 and 11. As noted, VA dental examination in February 2017 showed that his teeth were replaced by dentures. The record clearly shows that the Veteran sustained dental trauma while on active duty. As such, service connection for dental trauma for the purpose of obtaining VA outpatient dental treatment is shown to be warranted. To this extent, the appeal is allowed. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right middle and index fingers. Service connection for degenerative joint disease of the right middle and index fingers was established by rating decision dated in February 2017. A 10 percent initial rating was assigned under Code 5229. The Veteran contends that his right index and long finger disabilities are more disabling than currently evaluated. His representative has stated that the case should be referred for consideration of an extraschedular award. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). An examination was conducted by VA in December 2016. At that time, it was noted that the Veteran had had an injury of the right middle and index fingers with secondary degenerative joint disease. He currently had chronic pain with motion of the index and middle fingers. The pain was increased with repetitive use. It was noted that he was right hand dominant. He described having no flare-ups of disability, but did report functional loss as chronic pain with motion. Range of motion of the index finger joints was extension to 0 degrees; with maximum flexion to 90 degrees in the MCP joint, 90 degrees in the PIP joint and 40 degrees in the DIP joint. Range of motion of the long finger joints was extension to 0 degrees in the MCP and PIP joints and 30 degrees to 30 degrees. Maximum flexion was to 90 degrees in the MCP joint, 90 degrees in the PIP joint, and 30 degrees in the DIP joint. There was no gap between the pad of the thumb and the fingers or between the fingers and the proximal transverse crease of the and on maximal finger flexion. There was pain with use of the hand and objective evidence of localized tenderness or pain on palpation of the joint. This was further described as tenderness at the DIP and PIP joints of the index and middle fingers. The Veteran was able to perform repetitive use testing without additional functional loss or additional loss of range of motion. There was no atrophy or ankylosis, except for ankylosis of the right middle finger DIP. Another examination was conducted by VA in January 2018. At that time, the Veteran stated that the degenerative joint disease of the right index and middle fingers had worsened since his last evaluation. He noted increased discomfort and weakness of the right hand. He was again noted to be right hand dominant. He reported flare-ups of increased pain and stiffness. Ranges of motion of the right index finger included extension of the MCP, PIP and DIP joints to 0 degrees and flexion at the MCP joint to 90 degrees, PIP joint to 70 degrees and DIP joint to 40 degrees. Extension of the long finger was to 0 degrees at the MCP, PIP and DIP joints. Flexion of the long finger was to 90 degrees at the MCP joint, 70 degrees at the PIP joint and 30 degrees at the DIP joint. There was no gap noted between the thumb and fingers, but a 1 cm gap was found between the index and long fingers and the proximal transverse crease of the hand on maximal finger flexion. Pain was noted, but this did not result in functional loss. The Veteran was able to perform repetitive use testing without additional functional loss or range of motion. Hand grip was noted to be 4/5, which was related to his finger disability. There was no ankylosis of the right hand. There was marked degenerative deformity of the right middle finger at the distal phalanx, with bony overgrowth as well as the proximal nailbed deformity. The examiner stated that the right-hand condition would limit the Veteran’s ability to perform repetitive lifting, pushing, or pulling as well as repetitive grasping with the right hand. The examiner stated that this had progressed since the prior examination in December 2016. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. 4.71a, Code 5003. Code 5223 addresses favorable ankylosis of two digits of one hand. When the index and middle fingers are involved, a 20 percent disability rating is assigned. The highest, 30 percent, disability rating under this code is only assigned when there is favorable ankylosis of the thumb and any other finger. 38 C.F.R. § 4.71a. Code 5225 contemplates both favorable and unfavorable ankylosis of the index finger and provides for a 10 percent disability rating. Id. Code 5226 contemplates favorable and unfavorable ankylosis of the long/middle finger and provides for a 10 percent disability rating. Id. Code 5229 contemplates the limitation of motion for the index or long finger and provides for a noncompensable rating with a gap of less than 2.5 centimeters between the fingertip and proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. Under Code 5229, a 10 percent disability rating with a gap of 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. Id. Importantly, under 38 C.F.R. 4.71a , Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, note (2) says, when two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is otherwise not specified in the rating schedule, the evaluation level as assigned will be that which best represents the overall disability, assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. At the outset, the Board finds that the right index and middle finger are more appropriately rated separately under Code 5229, which addresses limitation of motion of the index or long finger. 38 C.F.R. § 4.71a. First, the Board will address whether a higher initial rating is warranted for the middle finger. Under DC 5229, a 10 percent disability rating is assigned where there is a gap of 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. The December 2016 VA examination revealed no gap between the pad of the thumb and the middle finger or a gap between the middle finger and the proximal transverse crease of the palm. There was, however, limitation motion and evidence of pain on motion and palpation as well as ankylosis of the DIP joint. While ankylosis was not manifested on examination in January 2018, a 1 cm gap was noted between the middle finger and the proximal transverse crease of the palm. As there is evidence of noncompensable limitation of motion due to arthritis, the Board finds that a 10 percent rating is warranted for degenerative joint disease of the middle finger. Thus, the Board finds that the medical evidence supports a rating of 10 percent under Code 5229 as the Veteran’s right middle finger disability is manifested noncompensable limitation of motion and painful motion of the finger. A 10 percent rating is the highest schedular rating available under DC 5229. As noted, the Veteran’s disability is most properly evaluated under Code 5229, however as there are higher schedular ratings available for the fingers under 38 C.F.R. §4.71a, they will also be considered. The only other Code that evaluates disability of the middle finger alone is Code 5226. However, the maximum rating provided is 10 percent; therefore, it need not be further discussed. Higher ratings under Code 5223 require involvement of more than one finger, thus, evaluation under this Code will be discussed after determining whether the index finger is entitled to a separate compensable rating. Regarding the Veteran’s right index finger, the December 2016 VA examination revealed full extension, but there was some limitation of flexion of the PIP and DIP joints. This was again demonstrated on examination in January 2018 as was a 1 cm gap left between the finger and the proximal transverse crease of the palm. There was also evidence of pain on examination which caused functional loss on finger flexion. There was no right hand ankylosis or atrophy, but there was weakness demonstrated in right hand grip strength. The Veteran’s right index finger disability is not manifested by a gap of less than 2.5 centimeters between the fingertip and the proximal transverse crease of the palm or extension limited by more than 30 degrees. Therefore, under DC 5229, the Veteran would not be entitled to a compensable rating for his right index finger disability. The Board, however, finds that the medical evidence supports a rating of 10 percent pursuant to 38 C.F.R. § 4.59, for painful motion with some limitation of motion as a result of degenerative joint disease of the index finger. The Veteran has credibly reported right index finger pain throughout the appeal period. Additionally, the VA examination reports are supported by the objective evidence on examination of pain with use that causes functional loss. Given the credible reports of painful motion, the Board finds that a separate 10 percent rating for the right index finger disability is warranted. 38 C.F.R. § 4.59, 4.71a, Code 5229; see Burton v. Shinseki, 25 Vet. App. 1 (2011); Butts v. Brown, 5 Vet. App. 539. In summary, the Board finds that the criteria for an initial, separate 10 percent rating for the right index finger pursuant to 38 C.F.R. § 4.59 have been met. The Board also considered other Codes which may potentially provide a higher rating for the Veteran’s right index and middle finger disabilities. The only other Codes that evaluates disability of the index finger alone is Code 5225. The maximum rating provided is 10 percent; therefore, it need not be further discussed. The Veteran’s finger disabilities could also be entitled to a higher disability rating of 20 percent under Code 5223. However, the Veteran’s right index and middle finger disabilities are not manifested by favorable ankylosis of two digits of one hand. As such, a rating under this Code is not appropriate. Therefore, the Board concludes that the Veteran is entitled to separate 10 percent, but no higher, ratings for the right index and middle fingers. To this extent, the appeal is granted. 3. Extraschedular Considerations The Board must also consider the Veteran’s representative’s contention regarding referral for extraschedular consideration. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of Compensation Service to determine whether the veteran’s disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran’s disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran’s middle finger limitation of flexion rated as part of the arthritis corresponds to the schedular criteria for a 10 percent evaluation for noncompensable limitation of motion, which also incorporates various orthopedic factors that limit motion or function of the knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The separate index finger impairment causes additional limitation of motion that is noncompensable under the diagnostic code, but is manifested by painful motion. Pain and limitation of motion are specifically contemplated in the schedular rating criteria, and are the basis for a separate schedular rating that recognized functional impairment distinct from the service-connected arthritis with limitation of motion. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran’s middle and index finger disabilities, and no referral for an extraschedular rating is required. (CONTINUED ON NEXT PAGE) A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio