Citation Nr: 21008565 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-38 028 DATE: February 17, 2021 ORDER A disability rating in excess of 10 percent for service-connected residuals of fractures of the fourth proximal phalanx of the left hand on an extraschedular basis is denied. FINDING OF FACT The Veteran’s service-connected residuals of fractures of the fourth proximal phalanx of the left hand neither presents such an exceptional or unusual disability picture that renders the available schedular ratings inadequate nor results in marked interference with employment. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected residuals of fractures of the fourth proximal phalanx of the left hand on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.27, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1996 to January 2000. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for residuals of fractures of the fourth proximal phalanx of the left hand and assigned an initial noncompensable disability rating, effective from May 16, 2011. The Veteran’s notice of disagreement (NOD) was received in October 2013. The RO issued a statement of the case (SOC) in September 2014. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2014. In April 2018, the Board remanded the case to the RO for further development and adjudicative action. In a December 2020 decision, the Board granted an initial 10 percent disability rating by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8516. The Board remanded the issue of entitlement to an extraschedular rating for service-connected residuals of the fourth proximal phalanx of the left hand for referral to the Director of Compensation Service for consideration of an extraschedular rating. In October 2020, the Director of Compensation Service denied an extraschedular rating. Therefore, the Board has jurisdiction of the claim. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Entitlement to a disability rating in excess of 10 percent for service-connected residuals of fractures of the fourth proximal phalanx of the left hand on an extraschedular basis. The Veteran contends that he is entitled to a higher disability rating for his service-connected residuals of fractures of the fourth proximal phalanx of the left hand. Disability ratings are typically determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.17. However, under certain circumstances VA may grant a disability rating outside of the rating schedule. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Director of Compensation Service for consideration of “an extra-schedular 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). An extra-schedular 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. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. Under Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and it 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 Director of Compensation Service to determine whether the Veteran’s disability picture requires the assignment of an extra-schedular rating. As discussed above, in June 2020, the Board remanded the issue of entitlement to an extraschedular rating for service-connected residuals of fractures of the fourth proximal phalanx of the left hand to the Agency of Original Jurisdiction (AOJ) to refer the claim to the Director. In August 2020, the AOJ referred the claim for an extraschedular rating to the Director. In an October 2020 decision, the Director of Compensation Service denied an extraschedular rating, and the AOJ continued the denial in a supplemental statement of the case dated in October 2020. The Director of Compensation Service’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). In doing so, the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board notes that “VA’s duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.” Morgan v. Wilkie, 31 Vet. App. 162 (2019). Here, the Board granted an initial 10 percent disability rating for residuals of fractures of the fourth proximal phalanx of the left hand and denied a schedular disability rating in excess of 10 percent. Thus, the Board is precluded from considering whether an increased schedular rating is warranted for residuals of fractures of the fourth proximal phalanx of the left hand, as that issue is no longer part of the present appeal. The Board will only address herein whether an extraschedular rating is warranted for residuals of fractures of the fourth proximal phalanx of the left hand. Notably, the Board’s earlier decision to refer the claim to the RO for extraschedular consideration is not binding on whether the assignment of an extraschedular rating is warranted. The decision to refer is based on a lower standard than the standard under 38 C.F.R. § 3.321(b)(1). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the court addressed the different evidentiary standards in the context of an extraschedular TDIU referral. The Court held: the initial extraschedular referral decision…addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. The Director then performs his or her duties and, if the Director denies an extraschedular rating, the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the preponderance of the evidence nevertheless shows that a veteran is unemployable by reason of his or her service-connected disabilities. In Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020), the Court extended Ray's reasoning and holding in the context of extraschedular TDIU under § 4.16(b) to the context of extraschedular rating under § 3.321(b). In the November 2012 rating decision, the RO rated the Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand under Diagnostic Codes 5299-5230. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5299 is used to identify musculoskeletal disabilities that are not specifically listed in the schedule but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. The assignment of Diagnostic Code 5230 shows that the Veteran’s service-connected residuals of fractures of the fourth proximal phalanx of the left hand is evaluated under limitation of motion of the ring finger. Under Diagnostic Code 5230, any limitation of motion of the ring finger is evaluated as noncompensable. In the June 2020 Board decision, the Board determined that even though there is no evidence of a diagnosis of a nerve disorder, the Veteran’s left ring finger disability is most analogous to mild incomplete paralysis of the ulnar nerve under 38 C.F.R. § 4.124a, Diagnostic Code 8516 and granted a 10 percent schedular disability rating. Turning to the medical and lay evidence of record, the Veteran underwent a VA examination in October 2012. The Veteran reported feeling of needle pricks with palpation and constant needle prickling sensation when gripping steering wheel. He also had a dull ache in the left side of the left hand by the end of the day of typing. There was no evidence of limitation of motion or evidence of painful motion of any of the fingers or thumb. There was no limitation of motion for any fingers after repetitive use testing. The examiner determined that there was no function loss for the left hand, thumb, or fingers after repetitive use. The examiner observed that the Veteran had tenderness or pain to palpation for joint or soft tissue of the left hand, including thumb and fingers. Left hand grip was five out five. There was no evidence of ankylosis. There was no function impairment of the Veteran’s left hand or ring finger that would be equally well served by an amputation with prosthesis. The examiner noted that the Veteran’s residuals of fracture fourth finger of the left hand impacts his ability to work in that his work requires typing throughout the day and he experiences pain in his left hand by the end of the day from typing. In his October 2014 VA Form 9, the Veteran alleged worsening of his service-connected residuals of fractures of the fourth proximal phalanx of the left hand. He contends that he experienced worsening pain, swelling, finger locking up, and daily shooting pain. The Veteran underwent another VA examination in October 2019. The Veteran reported that his finger pain has become worse over time with physical activity. He experiences daily pain in the ring finger with hardly any swelling. The Veteran reported that the pain is generally a ten out of ten and he takes Advil three time per day. He is right hand dominant. The Veteran stated that he had difficulty gripping objects and driving. Range of motion of the left hand was all normal. There was no additional loss of function or range of motion after three repetitions. The Veteran experiences pain that cause functional loss with repeated use over a period of time. The examiner stated that was not able to describe the function loss in terms of range of motion. The examiner explained that the Veteran denied loss of range of motion with repeated use and the examiner determined that there was no loss of range of motion anticipated with repeat use. The examiner determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. There were no additional contributing factors of disability. Muscle strength testing of the left hand was five out of five. The Veteran did not have muscle atrophy. The examiner determined that pain in the left finger limited gripping objects with the left hand and lifting objects of any weight with the left hand. As indicated in Thun, the threshold question is whether the schedular rating criteria adequately contemplate the Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand in that it reasonably describes the disability level and symptomatology and impairment. The Court has indicated that “when considering the first Thun element in the context of the evaluation of a neurological condition, one must assess not only whether symptoms are contemplated by the particular diagnostic code under which the disability is rated, here, Diagnostic Code 8516, but also whether they are contemplated in the language of the preface to the neurologic and convulsive disorders diagnostic codes, that is, in section 4.120. Given the broad nature of that provision, finding symptoms not contemplated by its ‘impairment of motor, sensory or mental function’ language presents quite a challenge.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The Veteran’s symptoms of residuals of fractures of the fourth proximal phalanx of the left hand symptoms including constant needle prickling sensation when gripping, swelling, finger locking up, daily shooting pain, limited ability to grip objects with the left hand, and limited ability to lift objects of any weight with the left hand, are thus contemplated by the schedular rating criteria for incomplete paralysis of the ulnar nerve under Diagnostic Code 8516. As the first prong for extraschedular consideration has not been satisfied, the Board need not further address the question of whether there is marked interference with employment or frequent hospitalization. For the sake of completeness however, the Board notes that marked interference with employment is not indicated by the record. In this case, the evidence shows that the Veteran is currently employed in a job that requires typing throughout the day. The Veteran stated in the October 2012 VA examination that he would experience pain in his left hand by the end of the day from typing. The October 2019 VA examination that pain in the left finger limited gripping objects with the left hand and lifting objects of any weight with the left hand. A December 2019 VA mental disorder examination noted that the Veteran was employed by the United States Postal Service processing mail. He works nights and no difficulty was noted. Therefore, despite the evidence indicating that the Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand cause severe pain, difficulty gripping with the left hand, and difficulty lifting objects of any weight with the left hand, he has consistently been able to work in a field that requires tying throughout the day and processing mail. This evidence reflects some interference with employment, as he experiences pain in the left ring finger after typing at work all day and difficulty gripping and lifting objects with his left hand, but does not constitute marked interference with employment, as the Veteran has consistently maintained employment. As noted by the medical evidence of record, the Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand is task-specific and results in relatively limited functional impairment. Therefore, the evidence does not reflect that the Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand results in marked interference with employment. There is also no medical or lay evidence that indicates that Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand result in frequent periods of hospitalization. Finally, while referral for extraschedular consideration was warranted because the evidence provided a reasonable possibility that the criteria under which the disability was rated may not adequately contemplate the Veteran’s symptoms, the preponderance of the evidence does not support the assignment of an extraschedular rating. In light of the foregoing, the Board finds that the Veteran’s residuals of fractures of the fourth proximal phalanx of the left hand are already contemplated by the assigned schedular rating criteria and does not cause marked interference with employment. In the absence of exceptional factors associated with the Veteran’s disability, the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.