Citation Nr: 0004149 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-12 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for residuals of traumatic amputation of the right little finger. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from March 1951 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was previously before the Board in September 1999, when it was remanded. The requested development has been completed. The Board now proceeds with its review of the appeal. The statement of the case provided the veteran with the provisions of 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The service-connected residuals of traumatic amputation of the right little finger are manifested by amputation of the little finger at the mid portion of the proximal phalanx, without metacarpal resection. There is no metacarpal resection, symptomatic scars or other symptomatology. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of traumatic amputation of the right little finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Code 5156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disability has worsened raises a plausible claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All relevant facts have been properly developed. VA has completed its duty to assist the veteran in the development of his increased rating claim. See 38 U.S.C.A. § 5107(a). The veteran has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Amputation of the little finger of either hand will be rated as 10 percent disabling if done at the proximal interphalangeal joint or proximal thereto, without metacarpal resection. A 20 percent rating will be assigned where there is metacarpal resection with more than one half of the bone lost. 38 C.F.R. § 4.71a, Code 5156 (1999). It should be noted that the metacarpal is a bone in the palm of the hand it is not one of the phalanges or finger bones. See 38 C.F.R. § 4.71a, Plate III (1999). The veteran's claim for an increased rating is supported by one piece of evidence. In July 1997, the veteran submitted a claim for an increased evaluation of his disability. He also submitted an outpatient treatment record, which appears to be from a VA facility. That record states that "[the veteran] has a metacarpal resection with more than one-half the bone lost." The RO failed to ask the physician if she signed this outpatient record. The Board has considered, returning the case to the RO to determine this; however, there is no point in further delay, because even if the doctor did sign the outpatient treatment record, the vast preponderance of evidence demonstrates that the veteran, in fact, does not have a metacarpal resection. The other evidence of record is against an increased rating. In considering the severity of a disability, the Board has reviewed the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). A 10 percent evaluation was assigned in a May 1954 rating action. A review of the record shows that the veteran sustained a shell fragment wound to his fifth right finger in September 1951, during his participation in the Korean Conflict. His finger was partially amputated at that time. Further debridement was subsequently carried out. It is also noted in his service medical records that his finger had been amputated at the mid-portion of the proximal phalanx, and his condition was considered to be healed. X-ray studies revealed an amputation at the proximal one-third of the proximal phalanx of the little finger. This would be consistent with the current 10 percent rating and the absence of the metacarpal involvement required for a higher rating. The veteran has not claimed and there is no record of any further surgery on the hand. VA examination in June 1977 disclosed amputation of the distal, middle, and distal 1/2 of the proximal phalanx of the fifth finger. The scar of the stump was very well healed with no retraction or deformity. The 5th metacarpophalangeal joint was normal. There was no pain, deformity or limitation of motion. The metacarpophalangeal joint is the joint between the metacarpal bone of the hand and the stump of the proximal phalanx. Neither the proximal phalanx stump, nor the metacarpophalangeal joint would be present if the amputation had to go further down and require metacarpal resection. The presence of the stump and joint is evidence that there was no metacarpal resection. The report of the July 1993 VA examination shows that the veteran lost the small finger of the right hand. There was no report of injury to the metacarpal in the hand itself. An October 1995 Board decision denied the veteran's claim that an evaluation greater than 10 percent was warranted for a right little finger disability. The veteran submitted a photocopy of his hand showing the absence of distal and middle parts of the right little finger with only a stump of the proximal portion remaining. The photocopy does not reflect any damage to the hand below the fingers. That is, the photocopy does not reflect any damage to the metacarpal. The veteran was examined in October 1999, specifically to determine the extent of his amputation. Examination showed the amputation to have been at the proximal phalanx of the fifth finger in the mid portion of that phalanx. The doctor specified that there was no metacarpal amputation. While the veteran is competent to report that a service- connected disability has become worse and warrants a higher rating, it is clear that the veteran is confusing the finger and the metacarpal. The evidence from the trained medical professionals is more probative than the assertion of a lay witness, such as the veteran. Here, although one doctor made a brief note that the metacarpal was involved, several doctors have repeatedly and consistently described the amputation as being in the proximal phalanx, which is the finger bone just above the metacarpal. The recent examination to specifically consider if the metacarpal was involved determined that it was not. Thus, the preponderance of the evidence is against the claim and there is no doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b) (West 1991). The veteran does not have the metacarpal involvement required for a higher rating. 38 C.F.R. § 4.7 (1999). The Board has considered the possibility of assigning a higher rating under other rating codes. There is no evidence of scar symptoms which would warrant an additional rating. 38 C.F.R. § 4.118 (1999). The veteran has not asserted and the Board's review of the record does not disclose any other basis for a higher rating. ORDER An increased rating for residuals of traumatic amputation of the right little finger is denied. CLIFFORD R. OLSON Acting Member, Board of Veterans' Appeals