Citation Nr: 18151256 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 08-17 072 DATE: November 16, 2018 ORDER Entitlement to extraschedular rating of 20 percent for the service-connected fracture of the right fourth metacarpal from January 20, 2004, to May 12, 2014, is granted. FINDINGS OF FACT 1. In a memorandum of August 2017, the Director, Compensation and Pension Service denied an extraschedular rating for the service-connected residuals of a right fourth metacarpal fracture. 2. The evidence of record reflects that from January 30, 2004, to May 12, 2014, the service-connected right fourth metacarpal disability demonstrated an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. CONCLUSION OF LAW The criteria for an extraschedular 20 percent rating from January 20, 2004, to May 12, 2014, for residuals of a right ring finger injury on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, 4.118, Diagnostic Codes 5227, 5230, 5155, 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1981 to June 1984. The Veteran testified at a hearing before a Decision Review Officer in March 2007. In March 2011, he also testified before a Veterans Law Judge who is no longer employed by the Board. The Veteran testified before the undersigned Veterans Law Judge in October 2013. This matter is on appeal from a February 2005 rating decision. The appeal was previously remanded by the Board of Veterans’ Appeals (Board) in May 2011, May 2013, and March 2014 for further development. By rating decision of September 2014, the RO established separate compensable ratings for limitation of motion of the right index finger, rated as 10 percent disabling, and limitation of motion of the right long finger, rated as 10 percent disabling, both effective from May 12, 2014. A total rating based upon individual unemployability was granted by rating decision of September 2018 from July 8, 2013. A 100 percent combined rating has been established from May 12, 2014. In November 2014, the Board denied entitlement to a compensable rating for service-connected fracture of the right fourth metacarpal. The Veteran subsequently appealed the denial of a compensable rating for service-connected fracture of the right fourth metacarpal to the Court of Appeals for Veterans Claims (Court). In an October 2016 Memorandum Decision and Order, the Court affirmed the Board’s denial of a compensable schedular rating for this disability, but set aside and remanded the matter of referral for extraschedular consideration for further adjudication. In its Memorandum Decision, the Court noted that the Veteran was in receipt of a noncompensable disability rating for the [right] ring finger under Diagnostic Code (DC) 5299-5230, and observed that under this DC, a noncompensable rating is the highest rating available for that individual digit After noting that separate ratings had been granted for the right index and long fingers, the Court found that the Board failed to consider the collective impact of these service-connected disabilities, despite evidence demonstrating that the Veteran’s right-hand disabilities cause significant difficulties in the use of his hand. In March 2017, the Board remanded for further development. In August 2018, the Board remanded this case to the RO because new evidence had been added to the claims file since issuance of the supplemental statement of the case and no waiver of jurisdiction for the evidence had been received. Following this remand, in September 2018, the Veteran’s attorney submitted a waiver of initial RO review of this additional evidence. Thus, the RO returned the issue of extraschedular consideration for the right fourth metacarpal to the Board for adjudication. Extraschedular Consideration for Right Fourth Metacarpal The Veteran seeks extraschedular consideration for his right fourth metacarpal disability. He contends that the right fourth metacarpal disability has been manifested by symptoms and impairment that are not contemplated by the noncompensable schedular rating assigned for the entire rating period. Specifically, in a June 2018 statement, the Veteran’s representative argues that the disability produces marked interference with employment. He notes that the Veteran, a tradesperson requires significant hand grip to safely use large power tools and that weakened movement of all the fingers in the Veteran’s dominant (right) hand has caused dismissal from jobs. In rating exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the veteran’s disability level and symptomatology, then the veteran’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321 (b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). When the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Id. As discussed above, in November 2014, the Board denied entitlement to a compensable rating for service-connected fracture of the right fourth metacarpal. Via an October 2016 Memorandum Decision and Order, the Court affirmed the Board’s denial of a compensable schedular rating for this disability, but set aside and remanded the matter of referral for extraschedular consideration for further adjudication. Therefore, the issue currently before the Board is whether the Veteran is entitled to a compensable rating on an extraschedular basis. In its decision, the Court found that the Board decision was inadequate and pointed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) case that “held that 38 C.F.R. §3.321(b)(1) required VA to consider, in determining whether referral for extraschedular consideration is appropriate, the combined effect of all of the veteran’s service connected disabilities that are granted benefits.” The Court cited Johnson v. McDonald, 762 F. 3rd 1362, 1366 (Fed. Cir. 2014). The Court further stated that “Recently, in Yancy v. McDonald, the Court stated that Johnson provides only that “referral for extra-schedular evaluation may be based on the collective impact of [a] veteran’s disabilities.” And held that “the Board is required to address whether referral for extraschedular consideration is warranted for a veterans’ disabilities on a collective basis only when that issue is argued by the claimant or reasonable raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.” 27 Vet. App. 484, 495 (2016). The Board observes that 38 C.F.R. § 3.321 (b) was amended to clarify that extraschedular ratings were available only to address the exceptional or unusual disability picture of a single disability, not the combined effects of multiple disabilities. 82 Fed. Reg. 57830, 57835 (Dec. 8, 2017). This change applies to all applications for benefits that were pending before VA on January 8, 2018, which includes this appeal. See Thurlow v. Wilkie, No. 16-3633 (Sept. 12, 2018). In March 2017 the Director of VA’s Compensation Service found that extraschedular consideration for the Veteran’s right- hand disability was not warranted. As the Director has adjudicated the issue of entitlement to an extraschedular rating, the Board may now consider this question. The Veteran’s representative has argued that the Director’s conclusion was in error because it failed to properly analyze the significant favorable evidence listed in the consideration document and that the Veteran’s multiple finger injuries require a significantly higher rating under the proper diagnostic code. The representative found fault with the statement that “the Finger conditions affect the Veteran’s ability to work impacting his ability to operate tools,” and that despite this unequivocal and unchallenged assessment, the Director concluded that “the record present (sic) no evidence of “marked interference with employment.” It is argued that this conclusion is inconsistent and directly contrary to the evidence cited in the same paragraph. In light of the recent amendment to 38 C.F.R. §3.321 (b), and the finding in Thurlow that the regulation change applies to all applications for benefits that were pending before VA on January 8, 2018, which includes this appeal, the Board will only address the exceptional or unusual disability picture of the single disability of the right fourth metacarpal, and not the combined effects of disabilities of the right index and long fingers.   For the entire rating period on appeal, the Veteran’s right fourth finger disability has been rated as zero percent disabling under DC 5299-5230. Under Diagnostic Code 5230, a noncompensable evaluation is the maximum evaluation for any limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71. In support of his claim that an extraschedular rating is warranted, the Veteran has submitted a letter from a former employer dated December 2004. In that letter, the owner of a construction company related his fear that he would not be able to continue the Veteran’s employment because the Veteran could not safely control power tools and an example of a power-tool accident was described. His employment with this construction company ended on January 9, 2006. Based upon this evidence, of marked interference with employment, the Board finds that an extraschedular rating is warranted for the residuals of a fracture to the right fourth metacarpal. As a result of the above grant, the Board looks to the rating code for guidance in the assignment of the extraschedular rating. Under DC 5155, a 20 percent rating is warranted for amputation of the ring finger with metacarpal resection. A 10 percent rating is warranted for amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto. In photographs submitted by the Veteran in July 2005, his right ring finger, when bent at the metacarpal level, caused the ring and long fingers to roll in the direction of his little finger. VA medical entries in January, February and June 2004 show that the finger was swollen and that bending it increased pain that was unrelieved. It appears from this evidence that there is no useful movement in the ring finger   below the metacarpal level. According, a 20 percent extraschedular rating based upon analogy to DC 5155 is warranted from January 30, 2004, the earliest date that this level of disability is demonstrated prior to the date of the claim for an increased rating. See 38 C.F.R. §3.400(o)(2). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Davis, Associate Counsel