Citation Nr: 1808946 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-30 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability. 3. Whether the reduction of a disability rating from 10 percent to zero percent for residuals of left ring finger fracture was proper. 4. Entitlement to a rating in excess of 10 percent for residuals of left ring finger fracture. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1987 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for the Veteran's left ring finger disability and assigned an initial 10 percent evaluation. The Veteran sought a higher initial rating. A subsequent May 2012 rating decision, of which the Veteran was notified in June 2012, determined that there was no objective evidence of residuals of left hand ring finger fracture, and therefore reduced the rating for this condition to zero percent. This appeal was previously before the Board in August 2015 and in July 2016. In each instance, the Board noted that the Veteran had previously been scheduled for a hearing with a Veterans Law Judge (VLJ) as the Veteran had requested on his VA Form 9 submitted in October 2011, but did not appear for the scheduled hearing. In each case, the Board noted that the Veteran had a change of address recorded within the claims file and found that the Veteran may not have received proper notice of the scheduled hearing. Ultimately, the Veteran was scheduled for four separate hearings before a VLJ, but did not appear for any of them. Most recently, the hearing notice letters were sent to two different addresses, including that specifically required by the July 2016 remand, plus multiple efforts to call the Veteran by telephone were made to confirm that he had proper notification of the date, time, and location of the scheduled hearing. There is no evidence that the Veteran was responsive to any of these calls or written notices. In light of the multiple attempts to schedule this Veteran for his requested hearing, including multiple phone calls, mailing to multiple addresses of record documented within the claims file, and two prior remands for this purpose, the Veteran has not appeared for a scheduled hearing. The Board nonetheless finds substantial compliance with all prior Board remand instructions in compliance with Stegall v. West, 11 Vet. App. 268 (1998), and determines that further efforts to afford the Veteran his requested hearing will serve no useful purpose in light of his repeated nonappearance. To this end, the Veteran is reminded that he must cooperate in providing information, including a current address, to the VA where such is necessary to adjudicate his claim for the monetary benefits he seeks. The United States Court of Appeals for Veterans Claims (Court) has specifically held that the "duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where a Veteran fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d) (2017). In this case, the Veteran's hearing request is considered withdrawn, and the Board will now proceed with the appeal. The Board further notes that at an earlier time during the present appeal, the Veteran was represented by an attorney. The record reflects that the attorney was duly notified of the hearing scheduled in July 2015, but also could not locate the Veteran to prepare for the hearing at that time. The attorney has since withdrawn from representation of this Veteran with good cause shown pursuant to VA regulation. 38 C.F.R. § 20.608(b). The Veteran now proceeds pro se in this matter. FINDINGS OF FACT 1. The evidence does not show an in-service event, injury, or disease related to a low back disorder, nor a relationship between the Veteran's diagnosed low back strain and his military service. 2. The evidence does not show an in-service event, injury, or disease related to a cervical spine disorder, nor a relationship between the Veteran's diagnosed degenerative disc changes of the cervical spine and his military service. 3. A rating decision dated in May 2012 reduced the 10 percent rating for residuals of a left ring finger fracture, in effect for less than 5 years, to a noncompensable rating, effective November 16, 2009. At the time of the rating reduction, the Veteran's residuals of left ring finger fracture included pain, weakness, reduction in grip strength, and a surgical scar. 4. At no time during the present appeal did the Veteran's residuals of left ring finger fracture present symptomatology that equated to amputation of the ring finger with metacarpal resection with more than one-half the bone lost. 5. The evidence does not show that the Veteran is rendered unable to secure and follow substantially gainful employment due to residuals of a left ring finger fracture, his only service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria to establish service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for restoration of the 10 percent rating for residuals of left ring finger fracture have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105(e), 4.1-4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5155, 5230 (2017). 4. The criteria for a disability rating in excess of 10 percent for residuals of left ring finger fracture are not met at any time during this appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5155, 5230, 4.118 Diagnostic Code 7804 (2017). 5. The criteria to establish entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Veteran has not referred to any explicit deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence within the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the given claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). (CONTINUED ON NEXT PAGE) Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The competency of evidence is a legal concept determining whether testimony may be heard from a particular witness on a given subject. Any claimant before VA is generally competent to provide testimony concerning factual matters of which he or she has firsthand knowledge, to include experiencing physical symptoms such as pain. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding lay person competent to report symptoms of a hip disorder including pain, an observably rotated foot, and a limp). Under certain circumstances, lay statements may support a claim by showing the occurrence of lay-observable events or the presence of disability, or symptoms of disability that are capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994) (finding lay evidence is competent if provided by a person with knowledge of the facts or circumstances and conveys matters that can be observed and described by a person without specialized knowledge or training); 38 C.F.R. § 3.159(a)(2) (2017). However, although a lay person can provide an account of matters they actually observed, or are within the realm of their own personal knowledge, a lay witness cannot offer evidence that requires specialized medical knowledge such as causation or etiology of a disease or injury. Layno v. Brown, 6 Vet. App. 465. In this case, the Veteran seeks service connection benefits for disabilities of the lumbar and cervical spine. With regard to the lumbar disability, the record reflects a diagnosis of low back strain in April 2005, several years prior to the current claim. Specifically the Veteran was seen in a VA emergency and urgent care setting for a reported two days of low back pain without radiation. The Veteran was a warehouse worker at the time, and reported awakening with tightness in the low back that was helped somewhat with Motrin. He was advised to avoid heavy lifting for four days. VA treatment record, April 2005. There is no evidence of subsequent treatment or diagnosis of any ongoing low back disability during the present appeals period. Nonetheless, even if the Board were to consider the diagnosed low back strain to be a current disability for the purposes of service connection, there is no evidence of any in-service event or injury referable to the Veteran's low back. At no time has the Veteran articulated an in-service occurrence to which he attributes his current low back strain, and the service treatment records contain no reference to a low back injury or event. In the absence of evidence of an in-service incurrence or aggravation of a disease or injury, and no showing of a relationship between the Veteran's diagnosed low back strain and his military service, service connection is not warranted. 38 C.F.R. § 3.303. With regard to the cervical spine claim, the record reflects a diagnosis of minimal degenerative disc space changes at the C5/6 and C4/5 levels. VA treatment record, January 2010. This constitutes a diagnosis of a current disability, and the first required element to establish service connection is met. However, as with the claimed lumbar disability, the Veteran has not presented any evidence or argument as to an in-service occurrence to which he attributes his cervical spine problem. The service treatment records do not reflect an injury, event, or other occurrence related to the cervical spine. Service connection cannot be established without a particular injury or disease resulting in disability that was incurred coincident with service in the Armed Forces. 38 C.F.R. § 3.303. The Board has also considered that service connection may be established on a presumptive basis for certain chronic diseases manifested to a compensable degree within a specific time period, usually within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The specifically applicable chronic diseases are listed in 38 C.F.R. § 3.309(a), and include arthritis. Although the evidentiary record in this case reflects no specific diagnosis of arthritis during the appellate period, the Board has considered whether the degenerative disc space changes shown would constitute arthritis for purposes of consideration under 38 C.F.R. § 3.307. However, even if arthritis where present during the current appeals period, there is no evidence that such diagnosis was present or manifested to a compensable degree within one year of the Veteran's discharge from service in April 1994. Based on the foregoing, service connection is not warranted for a disability of the lumbar or cervical spine given the evidence of record. Propriety of Rating Reduction In a March 2010 rating decision, service connection was established for residuals of a left ring finger fracture effective as of November 16, 2009. The condition was rated as 10 percent disabling. In April 2010, the Veteran's attorney expressed disagreement with the established rating and sought a higher rating on the Veteran's behalf. Then, in October 2011, the RO notified the Veteran of a rating decision proposing to reduce the Veteran's disability rating for residuals of his left ring finger fracture from 10 to zero percent disabling. Specifically, the RO found clear and unmistakable error in its prior rating decision in assigning the 10 percent rating, and in establishing the effective date in November 2009. The rating decision proposed a zero percent rating effective as of July 28, 2003. Although the notice of this proposed reduction was returned as undeliverable mail, the Veteran responded in December 2011 showing actual knowledge of the proposed action. The proposed decreased was effectuated by a rating decision in May 2012. The decreased disability rating was based upon a determination, per VA's Schedule for Rating Disabilities that a zero percent evaluation is assigned for any limitation of motion of the ring finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The RO further found that a 10 percent evaluation is not assigned unless there is amputation of the ring finger at the proximal interphalangeal joint or proximal thereto, or unless there is x-ray evidence of arthritis in two or more minor joints. 38 C.F.R. § 4.71a, Diagnostic Codes 5010 & 5155. Neither left ring finger arthritis nor amputation is shown in this Veteran's case. In January 2010 the Veteran sought to establish primary care at VA. At that time, he reported prior surgical repair during service of a broken fourth metacarpal (ring finger). The Veteran expressed that since that time he had not had as much strength in the left hand as he did before, and had pain in that hand. The Veteran reported use of ibuprofen for this pain as often as three to four times per week. The VA physician noted evidence of prior surgery of the left fourth carpal/metacarpal and noted that the hand grip is somewhat decreased in the left hand as compared to the right hand. VA treatment record, January 2010. Subsequently in May 2010, the Veteran was afforded a VA examination to determine the severity of his left ring finger fracture residuals. On examination, the Veteran reported pain in the left hand occurring as often as four times per day, lasting up to 3 hours per occurrence. He reported aching and sharp pain at a level of six on a scale of one to ten. The Veteran stated that the pain travels to the wrist, and can be exacerbated by physical activity, but is typically relieved by over-the-counter pain relievers. The claimant asserted that he does not receive treatment for the condition, but experiences times when he cannot grip things properly or for a long time with the left hand. The examiner noted a linear scar measuring 4 centimeters by 0.5 centimeters precisely located on the dorsal aspect of the left hand. This was identified as a superficial scar with no underlying tissue damage. There was no inflammation, swelling, or keloid formation. The scar was not painful on examination and not found to limit the Veteran's motion of the hand. The examiner stated, "There is no limitation of function due to the scar." Range of motion of the wrist, hand, and fingers, including the ring finger, was found to be within normal limits upon examination. The examiner found that the left ring finger joint function is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Ultimately, the examiner reported x-ray findings of a remote, internally fixed and well healed fracture in the proximal shaft of the fourth metacarpal. The diagnosis was "left hand ring finger fracture, status post open reduction and internal fixation" but the only residual determined by the examiner to be present at the time of examination was the surgical scar itself. The effect of the condition on the claimant's usual occupation or daily activities was reported as none. VA examination, April 2010. Based on the foregoing, the Board acknowledges that the Veteran's ring finger disability would generally not warrant a compensable rating under the relevant diagnostic codes for a single surgical scar, or for limitation of motion of the ring finger. 38 C.F.R. § 4.71. However, the Rating Schedule also states that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or other pathology, or due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Stated otherwise, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). In light of the Veteran's credible and competent description of the lay observable symptoms of pain, weakness, and decreased grip strength, as well as the January 2010 VA physician's notation of decreased grip strength in the left hand as compared to the right, the Board finds that the actually painful and weakened left ring finger, due to healed injury, is entitled to a minimum compensable rating of 10 percent. See DeLuca, 8 Vet. App. 202. As such, the May 2012 reduction in rating from 10 percent to zero percent was not warranted, and restoration of the Veteran's 10 percent disability rating for residuals of a left ring finger fracture is appropriate. 38 C.F.R. § 3.105. Increased Rating Disability evaluations are determined by application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The ratings percentages contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disability and the residual limitations that result in civil occupations. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In determining the appropriate evaluation in a given case, many different statutes, regulations, and case law applicable to VA govern. Each disability must be viewed in relation to its history. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. When after careful consideration of all available data, a reasonable doubt arises regarding the degree of disability, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under VA regulations, evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is prohibited. 38 C.F.R. § 4.14. To do so would overcompensate the Veteran for his loss of earning capacity. See Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25. Specifically, when the symptomatology is distinct and separate, an additional rating is allowed. The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The Board has considered all ratings available for disabilities of the ring finger to determine if the Veteran's impairment would qualify for a higher evaluation under any other pertinent diagnostic code. However, in this instance, based upon the restoration of the 10 percent rating above, the Veteran is in receipt of the highest rating available for an injury to the ring finger metacarpal, unless there is metacarpal resection with more than one-half the bone lost. Specifically, the amputation rule states that combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. In other words, 38 C.F.R. § 4.71a, Diagnostic Code 5155, provides the appropriate ratings for amputation of the ring finger. In the event that amputation is conducted without metacarpal resection, at the proximal interphalangeal joint or proximal thereto, a 10 percent rating is warranted. For amputation of the ring finger with metacarpal resection with more than one-half the bone lost, a 20 percent rating is available. 38 C.F.R. § 4.71a. In this Veteran's case, although a 10 percent rating is warranted for functional loss based on pain and decreased grip strength, no higher rating may be awarded on any basis as it would exceed the 10 percent combined rating that the Veteran could receive if amputation had been performed at the elective level. 38 C.F.R. § 4.68. Specifically, the Veteran did not undergo metacarpal resection and there is no evidence of any bone loss. As such, the 10 percent rating is the highest allowable combined rating for the Veteran's disability. (CONTINUED ON NEXT PAGE) TDIU A total disability rating based on individual unemployability may be granted where a Veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a) (2017). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Even when these criteria under 38 C.F.R. § 4.16(a) (2017) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). For a Veteran to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient on its own. A disability rating itself is recognition of impairment, but not that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by civilian employment, and not whether he can find any such employment in his or her given situation. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran's sole service-connected disability is residuals of a left ring finger fracture, with a restored disability rating of 10 percent. As such, the schedular criteria for TDIU are not met. 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran is entitled to a referral for consideration of an extraschedular TDIU. The Board finds that in this instance, he is not. As a threshold matter, there is no evidence of record that the Veteran has actually asserted that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected ring finger fracture residuals. Rather, the issue of TDIU entitlement was explicitly raised by the Veteran's former attorney in April 2010. The Veteran has otherwise presented no evidence or argument regarding his unemployability. However, as the Veteran's attorney explicitly raised the matter, the Board will address it. Nonetheless, the evidence of record shows no impairment that renders the Veteran unable to secure or follow a substantially gainful occupation due to his left ring finger fracture residuals. In fact, the Veteran describes seeking no treatment for this condition, treating it only with over-the-counter medications when needed, and the May 2010 examiner stated that the condition presented no effect on the Veteran's usual occupation or daily activities. In light of the foregoing, the Board finds that the evidence does not show that the Veteran's ring finger fracture residuals alone preclude the Veteran from obtaining or maintaining substantially gainful employment. Thus, referral for extraschedular TDIU consideration is not warranted at this time. Finally, after careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA will resolve that doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this instance, the evidence weighs against the Veteran's claims of entitlement to service connection for a lumbar and cervical spine disability, and against the claims of entitlement to a rating in excess of 10 percent for residuals of a left ring finger fracture, including TDIU. ORDER Service connection for a lumbar spine disability is denied. Service connection for a cervical spine disability is denied. Restoration of the 10 percent disability rating for residuals of a left ring finger fracture is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for residuals of a left ring finger fracture is denied. Entitlement to TDIU is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs