Citation Nr: 21075670
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 18-14 990
DATE: December 21, 2021

ISSUES

1. Entitlement to an initial compensable disability rating for service-connected right fifth metacarpal fracture.

2. Entitlement to service connection for a left leg disability, separate and apart from service-connected scar of the left anterior thigh.

ORDER

Entitlement to an initial compensable disability rating for service-connected right fifth metacarpal fracture is denied.

Entitlement to service connection for a left leg disability, separate and apart from service-connected scar of the left anterior thigh is denied.

FINDINGS OF FACT

1. The Veteran's right fifth finger is rated under Diagnostic Code 5230, which denotes that a noncompensable rating is the maximum rating for limitation of motion, even where there is associated pain and functional loss. The Veteran also does not have degenerative arthritis of the right fifth digit under Diagnostic Code 5003.

2. The competent and credible evidence does not reflect that the Veteran has been diagnosed with a left leg disability, separate and apart from the service-connected scar of the left anterior thigh, during the pendency of the appeal.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial compensable disability rating for service-connected right fifth metacarpal fracture have not been met or approximated. 38 C.F.R. § 4.59; Sowers v. McDonald, 27 Vet. App. 472, 480 (2016).

2. The criteria for entitlement to service connection for a left leg disability, separate and apart, from the service-connected scar of the left anterior thigh, have not been met or approximated. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Marine Corps from April 2007 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal.

By way of background, the Veteran was denied entitlement to service connection for tinnitus and a left leg disability in September 2014. In that same rating decision, he was granted entitlement to service connection for a right fifth metatarsal fracture, with a noncompensable rating, effective May 19, 2013. The Veteran filed a timely Notice of Disagreement (NOD) in September 2015, and he was issued a statement of the case in February 2018.

In a rating decision from February 2018, the Veteran was granted entitlement to service connection for tinnitus at a 10 percent disability rating and granted entitlement to service connection for a scar of the left anterior thigh, with a noncompensable disability rating.

The Veteran then filed a VA Form 9 in March 2018, in which he only appealed the disability rating for the service-connected right metatarsal fracture and "service connection for my left leg condition." As such, the issue of entitlement to service connection for tinnitus, which had been granted, is not currently before the Board. In the VA Form 9, the Veteran requested a hearing, and his claims were certified to the Board in April 2018.

The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file.

Importantly, as the Veteran has continued to appeal the issue of entitlement to service connection for a left leg disability, but because he has been granted entitlement to service connection for a scar of the left anterior thigh, with a noncompensable disability rating, the Board has recharacterized the issue as identified on the title page. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Finally, as emphasized above, the Veteran has claimed entitlement to an initial compensable disability rating for his service-connected right fifth "metatarsal" fracture. As identified on the title page however, this issue has been mischaracterized, and should be listed as a "metacarpal" fracture. Given the Veteran's assertions, his July 2021 testimony, and the medical evidence, the Board has recharacterized this issue as a "metacarpal" fracture to accurately reflect his claim. The Board finds that correctly recharacterizing the issue results in no prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The Veteran in this case has not referred to any 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 in 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 claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

1. Entitlement to an initial compensable disability rating for service-connected right fifth metacarpal fracture.

The Veteran has claimed that he is entitled to a higher disability rating for his service-connected right fifth metacarpal fracture.

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

A 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be 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 that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996).

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.

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45.

The Veteran's service-connected right fifth metacarpal fracture is rated under Diagnostic Code 5230 (ring or little finger, limitation of motion). Under DC 5230, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71a.

Of further relevance, Diagnostic Code 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. The code provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., Diagnostic Codes 5228 to 5230), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint or two or more minor joint groups affected by limitation of motion.

Turning to the available evidence, the Veteran was given a Board hearing before the undersigned in July 2021. During the hearing, the Veteran testified that his right fifth finger, "the pinky finger," is painful, and that he experiences weakness to that fifth digit. The Veteran testified that, given his job as a nuclear engineer, he often has to "grip and hold onto these tools for an extended period of time," and that it "affects my daily work" and dexterity. The Veteran stated that he has dropped tools due to the diminished grip strength. The Veteran testified that his right fifth finger experiences "daily aches and pains," and that he "can't open my hand completely."

The Veteran is competent to report the symptoms he experiences, such as those associated with his right fifth finger. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

Turning to the medical evidence, the Veteran was seen for a VA examination in November 2016. The Veteran was seen in person, and his claims file was reviewed. The Veteran was noted to be right hand dominant. The examiner confirmed the diagnosis of "status/post closed reduction of fracture of neck of right fifth metacarpal, with residual constant achy pain and occasional tingling right little and right ring finger." The examiner noted that the Veteran had experienced a painful grip, but that it "feels better if [he does not] use hand." The examiner noted x-rays from September 2009 noted "closed fracture of the neck of right fifth metacarpal, healing well." Following clinical testing, "pain" was the only notable symptom. Following an x-ray taken for that examination, the examiner wrote that "there is deformity of the head of the fifth metacarpal, suggestive of old healed fracture with deformity. Soft tissues are normal. Otherwise, negative study." The Veteran was not noted to have arthritis.

There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In consideration of the above, the Veteran is currently rated under Diagnostic Code 5230, which denotes that a noncompensable rating is the maximum rating for limitation of motion. The Board acknowledges the Veteran's reported symptoms, including painful motion and weakness; however, under Diagnostic Code 5230, any level of limitation of motion of the fifth finger results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the fourth and fifth fingers). Thus, even with consideration of 38 C.F.R. § 4.59, a compensable rating is not warranted.

The Board has also considered DC 5003 for degenerative arthritis. DC 5003 provides that a rating of 10 percent is for application for each such major joint or two or more minor joint groups affected by limitation of motion. For the purposes of rating a disability due to arthritis, the metacarpal joints are considered minor joints. 38 C.F.R. § 4.45 (f).

In the current case however, the Veteran was not found to have degenerative arthritis of the right fifth finger. At no point during the Veteran's testimony, nor within his lay statements or the arguments from his Representative, did the Veteran claim to have degenerative arthritis. Arthritis was also denied by the VA examination from November 2016, which was confirmed by x-ray, and the Board has afforded that examination report significant probative weight.

In sum, normally the Veteran would be entitled to a minimum 10 percent disability rating under 38 C.F.R. § 4.59, but that minimum disability rating is only applicable where the disability rating in question allows for a minimum compensable rating. DC 5230 does not allow for a minimum compensable rating for limitation of motion of the right or little finger. As such, the Veteran is not entitled to a minimum disability rating of 10 percent, despite his claims of pain, weakness and functional loss in the present case. Under DC 5230, the maximum schedular disability rating is still noncompensable.

Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

Having said that, the Court has held that where extraschedular consideration is not specifically sought by the claimant nor reasonably raised by the facts found by the Board, discussion of referral for extraschedular consideration is not required. See Yancy v. McDonald, 27 Vet. App. 484, 4919 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006); aff'd 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the Court stated, "that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." Yancy, 27 Vet. App. at 495; see Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

In the present case the issue of extraschedular consideration was not raised by the Veteran, nor his Representative. As such, referral for extraschedular consideration has not been specifically sought by the claimant nor reasonably raised by the facts of record and is not warranted in this case. See Yancy, Id.

As such, entitlement to an initial compensable disability rating for service-connected right fifth finger metacarpal is not warranted, and the Veteran's claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990), DC 5230.

2. Entitlement to service connection for a left leg disability, separate and apart from service-connected scar of the left anterior thigh.

The Board incorporates its discussion from the sections above by reference.

The Veteran claimed in May 2014 that he has a left leg condition which is due to his active-duty service. In the Veteran's NOD from September 2015, he wrote that in service he was "treated for methicillin-resistant staphylococcus aureus (MRSA) and a spider bite." A similar statement was provided by the Veteran in his VA Form 9 from March 2018.

To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a).

To begin, the Veteran does not have a current diagnosis that is separate and apart from his service-connected scar of the left thigh.

The Veteran's NOD and Form 9 both state that he was treated for a spider bite and MRSA while in service, but the Veteran has not indicated that he has any current residuals or disability, other than the left thigh scar for which service connected has been granted. See February 2018 Rating Decision.

The Veteran was given a Board hearing before the undersigned in July 2021. During the hearing, the Veteran testified that he was 

bit by a brown recluse spider ... it was just an open wound, because they had to go in and they had to actually clean out all the infection ... and repack the hole with gauze ... it was a two-and-a-half-month process for this, for my leg to actually heal. But now I have  it was a quarter sized scar, over time, it has grown maybe a little smaller.

The Veteran continued to testify as to the scar being painful "if I am working and I bump into something with my thigh." He later testified that "the scar is high up on my leg, but I mean, it is kind of a nasty looking scar ... it's kind of embarrassing sometimes." The Veteran did not testify to having any residuals related to his left leg other than the thigh scar. In fact, the Board recognizes, that during his hearing, the Veteran denied any further residuals, aside from the scar on his left thigh.

The Veteran was also given a VA examination in November 2016. The Veteran was seen in person, and his claims file was reviewed. The examiner noted that the Veteran had a "tiny abscess scar [two centimeters.] left thigh healed well. No complications, no sequelae. No residuals." No further diagnosis or residuals were noted related to the left leg and/or thigh.

There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the existence of the Veteran's claimed disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In consideration of the above, the Board finds that the Veteran does not have a current diagnosis of the left leg/thigh which is separate and apart from the scar of the left anterior thigh. Importantly, in the Veteran's lay statements, which include his NOD and the VA Form 9, he did not indicate that he has a current disability, only that he was treated for a spider bite and MRSA while on active duty. During the Veteran's hearing, his testimony centered around the single scar on his left thigh, not a separate leg/thigh disability. In fact, the Veteran denied other residuals to his left leg, other than the scar itself. During the Veteran's November 2016 VA examination, which the Board has afforded significant probative weight, no further left leg disability was noted, aside from the scar of the left anterior thigh. The examiner noted the Veteran's in-service treatment, but found that there were no residuals, no complications, and no further sequelae.

Importantly, it was from this VA examination that the RO granted entitlement to service connection for that same scar of the left anterior thigh in February 2018.

As a result, the Board finds that the Veteran does not have a current diagnosis of the left leg/thigh, separate and apart from the service-connected scar of the left anterior thigh. 38 C.F.R. § § 3.303(a).

Additionally, the Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) ("pain alone can serve as a functional impairment and therefore qualify as a disability"). That Federal Circuit decision qualified that holding, however: "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that [her] pain reaches the level of functional impairment of earning capacity." Id. at 1365.

In this case, however, during the pendency of the appeal, the Veteran did not claim that his left leg, aside from the scar itself, had caused him pain. Furthermore, the Veteran did not claim that any left leg disability had resulted in a functional loss. Thus, the Veteran does not have a present disability manifest by pain that could be identified as part of his claim for service connection for a left leg disability, aside from the service-connected scar, pursuant to Saunders. To be sure, the Veteran did testify that he experiences pain from the scar on his left thigh, but the Board notes that the Veteran is currently in receipt of a separate disability rating for that scar, and that disability rating is not currently on appeal.

Therefore, the first criteria for service connection is not met for the claimed disability, as there is no evidence that the Veteran had a current diagnosis of a left leg disability, aside from the service-connected scar of the left anterior thigh. 38 C.F.R. § § 3.303(a).

As far as the second and third criteria for service connection, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability during the period of the appeal. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, in the absence of competent evidence showing a current diagnosis of a left leg disability, aside from the left anterior scar, it is unnecessary to address the remaining elements of the claims for entitlement to service connection. See Brammer, 3 Vet. App. at 225.

Thus, the Board finds that entitlement to service connection for a left leg disability, separate and apart from the service-connected scar of the left anterior thigh is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and entitlement to service connection is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57.

Finally, while the Board recognizes that the Veteran has provided competent testimony that the scar of the left anterior thigh is painful, as he is currently service-connected for that disability, he is invited to file a separate increased rating claim for the current disability rating of that service-connected scar.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Mulrain, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.