Citation Nr: 1806921 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-03 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for right hand status post crushing injury with residual tenderness and scar. 2. Entitlement to a separate compensable rating for a right hand scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2000 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver Colorado that, among other things, granted service connection for right hand status post crushing injury with residual tenderness and scar and assigned a noncompensable rating effective March 7, 2012. The Veteran timely appealed the initial rating assigned. FINDINGS OF FACT 1. The Veteran's right hand disability was manifested by pain, with no gap between the fingertip and the proximal transverse crease of the palm, normal range of motion, and no ankylosis. 2. The Veteran's right hand scar is not shown to be of the face, head or neck, or to measure greater than 39 square cm; however, the scar is painful, but not unstable. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but not higher, for right hand status post crushing injury with residual tenderness and scar, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5229 (2017). 2. The criteria establishing a separate 10 percent evaluation, and no higher, for a right hand scar have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800-7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As noted above, the claim for a higher rating for the right hand status post crushing injury with residual tenderness and scar arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection for this disability. Where, as here, an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records (STRs) and pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's STRs, as well as post-service reports of VA treatments and VA examinations in January 2013 and February 2017. Moreover, his statements in support of the claims are of record, and these statements do not reflect that available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but nothing in these records suggests that there is any outstanding evidence with respect to the Veteran's claims. As stated above, the Veteran was afforded VA examinations in January 2013 and February 2017. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For the reasons indicated in the discussion below, the Board finds that the VA examinations are adequate, as they are predicated on consideration of the medical records in the Veteran's claims file, to include the Veteran's statements, and document that the examiners conducted a full physical examination of the Veteran. For the above reasons, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher evaluation for his service-connected right hand status post crushing injury with residual tenderness and scar. The Veteran was assigned a noncompensable rating from March 7, 2012, pursuant to 38 C.F.R. § 4.71a, DC 5229. For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the MP joint has a range of 0 to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the DIP joint has a range of 0 to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, DCs 5216-5230, Note (1). When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. See 38 C.F.R. § 4.71a, DCs 5216-5230, Note (2). For evaluation of ankylosis of the index, long, ring, and little fingers, if both the MP and PIP joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at PIP joint or proximal thereto. If both the MP and PIP joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position. If only the MP or PIP joint is ankylosed, and there is a gap of more than two inches (5.1 centimeters) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis. If only the MP or PIP joint is ankylosed, and there is a gap of two inches (5.1 centimeters) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as favorable ankylosis. See 38 C.F.R. § 4.71, DCs 5216-5230, Note (3). If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations. See 38 C.F.R. § 4.71, DCs 5216-5230, Note (5). Diagnostic Code 5229 pertains to limitation of motion of the index finger or of the long finger. DC 5229 provides that a noncompensable (0 percent) evaluation is warranted for limitation of motion of the index finger or the long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. A rating of 10 percent under DC 5229 requires limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. Unfavorable or favorable ankylosis of the long finger warrants a 10 percent rating. DC 5226. The Veteran contends that the right hand status post crushing injury with residual tenderness and scar results in pain, weakness, and a lack of endurance. A January 2013 VA examination report indicates that the Veteran reported he experiences pain in his right hand daily and whenever he has to grasp or squeeze something, such as when opening a door. The Veteran described his pain as 3 out of 10 on a scale of 1 to 10. The Veteran also reported that he does not experience flare-ups. The examiner noted that there was no limitation of motion or evidence of painful motion for any fingers or thumbs. The examiner also noted that the Veteran was able to perform repetitive-use testing with three repetitions and that there was no additional limitation of motion for any fingers after the test. There was no gap between the thumb pad and the fingers. The examiner noted that the Veteran has tenderness or pain to palpation for joints or soft tissue in the right hand. Muscle testing was normal and there was no ankylosis noted on the exam. The examiner noted that the Veteran's hand impacts his ability to work. A February 2017 VA examination report indicates that the Veteran reported that his hand initially hurt constantly but that it now only hurts with pressure over the area or when gripping with the hand. The Veteran reported there were no flare-ups. He had normal range of motion, flexion of 70 degrees of the third DIP joint, and normal strength. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was no ankylosis of the joint. The examiner noted that there was no evidence of pain on the exam. However, the examiner also noted that there was mild tenderness localized over the right fourth MCP and distally to the injury scar. The examiner noted that pain significantly limits functional ability with repeated use over a period of time. However, the examiner was unable to describe the pain in terms of range of motion by stating that functional limitations are reflected in tolerance to activity. The examiner described the Veteran's functional impact as having limited tolerance to activities that require forceful gripping with the right hand and with impact activities with the right hand. Based on the above findings and resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent from March 7, 2012 for the right hand status post crushing injury with residual tenderness and scar, is warranted. While the VA examiners found that there was a gap of less than one inch between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible and extension limited by no more than 30 degrees, the examinations reflect that the Veteran experienced pain on motion. Under 38 C.F.R. § 4.59, painful joints due to healed injury, such as the case here, are entitled to at least the minimal compensable rating for the joint. As such, a rating of 10 percent, which is specifically contemplated by DC 5229, is warranted from April 4, 2009. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015) (a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence). Similarly, the Board also finds that a rating in excess of 10 percent for the Veteran's left long finger disability is not warranted. Under DC 5229, a 10 percent rating is warranted for long finger limitation of motion with 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, or; with extension limited by more than 30 degrees. The Veteran demonstrated extension limited to 40 degrees in his left middle finger. Further, as explained above, under DC 5226, favorable or unfavorable ankylosis of the long finger warrants only a 10 percent rating, with amputation used as consideration, and the Veteran does not demonstrate ankylosis or amputation. For the reasons above, the criteria for an initial rating of 10 percent, but not higher, is warranted. As the preponderance of the evidence is against any higher schedular rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board also finds that a separate 10 percent rating is warranted for the right hand scar. At a January 2013 VA examination, the examiner noted the Veteran's scar on his right hand, however, the Veteran also noted that the scar was not painful and/or unstable and total area of the scar was less than 39 square centimeters (cm). The examiner also noted that the scar was non-tender. At the February 2017 VA examination, a scar on the right hand was noted, however, the examiner found that the scar was soft, non-adherent, and non-tender. However, in an April 2013 notice of disagreement (NOD), the Veteran stated that both his scar and area of injury are painful at times and that the pain increases when he grips his hand. The Veteran's testimony in this regard is competent and credible. Therefore, a separate rating of 10 percent for a right hand scar is warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017) (a 10 percent rating is warranted for one or two scars that are painful or unstable). See also Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (the Board has a duty to acknowledge and consider all regulations that are potentially applicable). There is no evidence or argument that a higher separate rating for the scar is warranted. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer the claim for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2017). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peak, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the scheduler evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The discussion above reflects that the symptoms of the Veteran's right hand status post crushing injury with residual tenderness and scar, specifically, pain weakness, and lack of endurance, are fully contemplated by the applicable rating criteria. The Board notes that pain is contemplated in the rating criteria for all musculoskeletal disabilities, and it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59 (2017); see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis). In addition, weakness and lack of endurance are contemplated in the ratings for all orthopedic disabilities. See 38 C.F.R. §§ 4.40, 4.45. The Board therefore need not consider whether this disability marked interference with employment or frequent hospitalization, and a remand for consideration of an extraschedular rating is not in order. Finally, in this case, the Board notes that neither the Veteran nor his representative have argued that the Veteran's right hand disability renders him unemployable and the evidence does not indicate such. The January 2013 VA examiner indicated that the disability did not impact the Veteran's ability to work and the February 2017 VA examination indicated that the Veteran was a full time student and that the disability did limit the Veteran's tolerance to activities that require forceful gripping, but not that it would tend to render him unemployable. As such, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) based on the service-connected disability currently on appeal has not been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). ORDER Entitlement to an initial rating of 10 percent, but not higher, for right hand status post crushing injury with residual tenderness is granted, from March 7, 2012, subject to controlling regulations governing the payment of monetary awards. A separate 10 percent rating, but no higher, for a right hand scar is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs