Citation Nr: 0005727 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-36 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased (compensable) disability rating for fracture of the right middle metacarpal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from September 1973 to April 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a November 1994 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO assigned a 0 percent, noncompensable disability rating for a fracture of the right middle metacarpal. In July 1997, and again in March 1998, the Board remanded the case for additional action. The veteran appeared at a hearing at the RO in September 1997. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's right middle finger is not currently shown to have ankylosis, limitation of motion, or other impairment of function residual to a fracture of the metacarpal of that finger in 1974. CONCLUSION OF LAW The criteria for a compensable disability rating for residuals of a fracture of the right middle finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5226 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking a higher disability rating for a service-connected fracture of the right middle metacarpal. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 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 defined a well grounded claim as a plausible claim; one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has established that when a claimant was awarded service connection for a disability, and the claimant subsequently appealed the RO's initial assignment of the rating for those disabilities, the claim is well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). The veteran appealed the rating initially assigned for his right middle metacarpal fracture. The rating schedule provides for higher ratings for finger disabilities. Therefore, the Board finds that the veteran's increased rating claim is well grounded. When a veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In this case, the Board finds that the facts relevant to the veteran's increased rating claim have been properly developed, such that VA has satisfied its statutory obligation to assist the veteran in the development of that claim. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). Nevertheless, the present level of disability is of primary concern, and the past medical reports do not have precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). VA regulations provide, and the Court has emphasized, that evaluation of a musculoskeletal disability must include consideration of the veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1999). The veteran's service medical records reflect that he sustained a traumatic injury to his right hand in August 1974. X-rays showed a fracture of the third metacarpal. His right hand was placed in a short arm cast for four weeks. The service medical records do not show any further treatment of the finger. In a VA medical examination in September 1993, the veteran reported a history of joint swelling, with no recent joint complaints. In a September 1997 hearing at the RO, the veteran asserted that his problems with his injured finger and problems with his right hand were all part of the same problem. He reported that he had painful spasms in his right hand that flared up with use of that hand. In May 1998, the Board denied the veteran's claim for service connection for arthritis of the right hand secondary to the fracture of the right middle metacarpal. The Board found that the veteran had not submitted evidence to create a well grounded claim for service connection of arthritis of the hand. On VA examination in May 1998, the veteran reported the history of the fracture of the finger during service. The veteran reported that he currently had cramps in his right hand, in the hypothenar eminence. He reported that he was unable to use his right hand for tasks like hammering nails or pushing a lawn mower. The examiner observed a full range of motion of the third finger and the other fingers of the veteran's right hand. There was no evidence of swelling, tenderness, deformity, or pain on motion of the third finger. The active and passive ranges of motion were the same. The examiner found that the veteran had hypothenar pain and an early spasm reproduced by compression of the ulnar artery and nerve on the right side of the wrist. The examiner's diagnoses were as follows: 1. Finger fractured, healed without residuals. 2. Spasm of the right hand probably secondary to decreased circulation of the ulnar artery of the right hand. In June 1999, the VA physician who examined the veteran in May 1998 provided an addendum to the examination report. The examiner reported that x-rays of the veteran's right hand were normal. The examiner again reported that the fracture of the veteran's finger was healed and without residual. The examiner amended the diagnosis for the right hand disorder to: "Peripheral vascular disease of the ulnar artery to right hand, prominent only with activity." The Board has denied service connection for a condition manifested by pain in the veteran's right hand. The evidence from medical examinations also supports the conclusion that the pain and spasm in the right hand that the veteran has reported is a separate condition from any residual disability due to the fracture of the metacarpal of his right third finger. The Board notes, therefore, that the appropriate rating for the service-connected fracture must be based on the manifestations of that fracture only, and not of any other conditions affecting the veteran's right hand. Under the rating schedule, ankylosis, or complete loss of motion, of the middle finger is rated as 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5226 (1999). The rating schedule does not provide a compensable rating for limitation of motion of the middle finger that falls short of ankylosis. VA medical examination revealed a full range of motion of the veteran's right middle finger. The examination did not indicate that the fracture of the veteran's finger produced residual impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. Indeed, the examiner found that the veteran had no residuals of the healed fracture. Therefore, the Board finds that the preponderance of the evidence is against a compensable disability rating for residuals of the right middle metacarpal fracture. In light of the evidence that the healed fracture does not impair function of the veteran's finger, the Board concludes that the manifestations of that healed fracture do not present an exceptional or unusual disability picture such as would necessitate referral of the case to the Chief Benefits Director or the Director of the Compensation and Pension Service for the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999). Accordingly, the claim for an increased rating is denied. ORDER Entitlement to an increased, compensable disability rating for residuals of a fracture of the right middle metacarpal is denied. JEFF MARTIN Member, Board of Veterans' Appeals