Citation Nr: 0006765 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 94-46 839A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a compensable rating for the residuals of a shrapnel wound of the left thumb. REPRESENTATION Appellant represented by: Pennsylvania Department of Military Affairs Bureau for Veterans Affairs and Assistance WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1970. He was awarded the Purple Heart for a wound incurred in action. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) in which the veteran was awarded service connection for the residuals of a shell fragment wound of the left thumb, and a noncompensable evaluation was assigned thereto. The veteran subsequently perfected an appeal of that decision. In a July 1998 Board decision, this case was remanded to the RO for additional development. Upon completion of this development the RO again denied the veteran's claim. Accordingly, this case is properly before the Board for appellate consideration. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's residuals of a shell fragment wound to the left thumb are currently manifested by subjective complaints of pain on use and pressure. Current objective findings include a well-healed scar on the thumb, limitation of motion of the distal interphalangeal joint flexion, some loss of appreciation of light touch and sharp/dull discrimination, good strength, no atrophy, no synovitis, and asymptomatic left fingers, wrist, forearm, elbow and upper arm. No X-ray evidence of degenerative joint disease of the thumb. 3. There is no objective clinical evidence of poorly nourished or tender scars, peripheral nerve involvement, or muscle damage shown in the left thumb. CONCLUSION OF LAW The criteria for 10 percent evaluation for the residuals of a shell fragment wound to the left thumb, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.71, 4.71a, 4.118, 4.124a, Diagnostic Codes 5224, 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board determines that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) by virtue of his statements that he has suffered an increase in disability. See Drosky v. Brown, 10 Vet. App. 251, 254 (1997). Further, the Board finds that all relevant facts have been properly developed and no additional assistance to the veteran is required to comply with the duty-to-assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). However, the Board will consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). In addition, in evaluating increased ratings, consideration will be given to whether higher ratings are available under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Specifically, in DeLuca, the Board was directed to consider whether a veteran's complaints of shoulder pain could significantly limit functional ability during flare-ups or when the arm was used repeatedly, thus warranting a higher evaluation under 38 C.F.R. § 4.40. Moreover, the Board will consider whether weakened movement, excess fatigability, and incoordination support higher ratings under 38 C.F.R. § 4.45. See DeLuca, 8 Vet. App. at 207. In rendering a determination on missile injuries, the analysis must start with a review of the extent of the original traumatic injury, and the course of the disability in the ensuing years. Service medical records contain no reference to treatment or injury to the veteran's left thumb. However, the veteran submitted statements from four veterans, including the medic who treated him, who confirmed the circumstances of his in service injury. These statements essentially document that on July 18, 1969, the veteran was struck in the left thumb by a piece of shrapnel from a mortar round. The fact that the veteran was wounded in combat is further corroborated by the information on the veteran's Form DD214 which shows that he was awarded the Purple Heart. As for post-service treatment, the veteran testified at a March 1995 RO hearing that he had not had treatment for his left thumb since discharge. By rating decision dated in March 1996, the RO granted entitlement to service connection for the residuals of a shell fragment wound to the left thumb, and assigned a noncompensable evaluations thereto. The medical evidence of record consists of three VA examination reports dated in May 1994, February 1996 and September 1999. Subjectively, the veteran reported that he has pain in his left thumb on use and pressure which interferes with his ability to perform his job, but he asserted no symptoms in his left hand, wrist, forearm, elbow or upper arm. Objectively, these examination reports all document a well- healed scar along the thumb, with the most recent examination identifying it as a twenty-two millimeter scar extending from the base of the dorsum of the distal phalanx to near the base of the left thumbnail. This examination report also notes a two millimeter puncture wound with slight callous formation with some loss of bulk but no loss of pulp at the tip. The May 1994 and September 1999 reports reveal limitation of motion of the first interphalangeal joint of the left thumb - distal interphalangeal joint flexion of 35 degrees, metacarpophalangeal joint flexion of 75 degrees - and all three note no evidence of swelling. In May 1994 the examiner noted hyperesthesia of the left thumb area and slight gross deformity, in September 1999,the examiner reported decreased appreciation of light touch and sharp/dull discrimination on the radial half of the palmar aspect of the left distal thumb, with pinprick otherwise normal. The most recent report also found good strength (4/5), although slightly below normal (5/5), with no wasting of the thenar or hypothenar eminences, or the small muscles of the hand. There was also normal concavity between the thenar and hypothenar eminences at the base of the hand and no synovitis of the small joints. No X-ray evidence of degenerative joint disease of the thumb is noted. Additionally, the most recent examination report shows no disability in the other fingers of the left hand, the left wrist, the left forearm or the left elbow. The most recent assessment of the veteran's disorder is a healed shrapnel wound of the left thumb with some cosmetic deformity, soft tissue contractures, and limited distal interphalangeal joint motion. Generally, when evaluating a disability, particularly the residuals of a shell fragment injury, consideration of all applicable Diagnostic Codes will be made. Therefore, the Board will discuss potential residuals of the veteran's shell fragment wound as applicable under muscle injury, musculoskeletal, peripheral nerve, and scar regulations. Beginning with consideration of any possible muscle damage residuals, there are no service medical records relevant to this wound, and thus, no indication of a muscle injury to the left thumb in service. More significantly, the post-service medical evidence contains no indication of a muscle injury. Accordingly, there is no basis on which to assign a separate compensable evaluation under any relevant muscle injury diagnostic code. Turning to whether the veteran has experienced peripheral nerve involvement as a result of the left thumb shell fragment wound, the regulation governing evaluation of peripheral nerve disabilities, 38 C.F.R. § 4.124a (1999), provides compensation for complete and incomplete paralysis of the appropriate nerve. Incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to varied level of the nerve lesion or to partial regeneration. In the present case, while there is mention of some neurological symptomatology - hyperesthesia, decreased appreciation of light touch and sharp/dull discrimination - there is no diagnosis relevant to a peripheral nerve disorder such as neuritis or neuralgia. Furthermore, other than his left thumb, the veteran's left upper extremity is asymptomatic of any sensory deficiency or other nerve damage symptomatology. Thus, there is no evidence of peripheral nerve involvement and no basis on which to assign a separate compensable evaluation under any relevant neurologic diagnostic code. Under the musculoskeletal regulations, 38 C.F.R. § 4.71a (1999), Diagnostic Code 5224 governing evaluation of individual finger disability, is the only applicable Diagnostic Code. The veteran does not have clinical evidence of degenerative arthritis warranting consideration of the Diagnostic Codes addressing arthritic disabilities, and there is no indication of involvement of his other fingers, wrist, elbow, forearm or upper arm; thus precluding consideration or application of the Diagnostic Codes pertaining to these body parts. Pursuant to Diagnostic Code 5224, for both major and minor hands, a 10 percent evaluation is assigned for favorable ankylosis, and a 20 percent evaluation for unfavorable ankylosis. In the present case, there is no medical evidence indicating that the veteran's left thumb is ankylosed either favorably or unfavorably, only that there is some limitation of motion of the distal interphalangeal joint. Therefore, compensation under these regulations is not warranted. In evaluating the scar residuals, the Board notes that the scars at issue are located on the veteran's left thumb. Under Diagnostic Code 7804, a 10 percent evaluation is warranted for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999). A 10 percent evaluation is also warranted under DC 7803 for superficial scars that are poorly nourished with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803 (1999). All other scars are rated on the limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999). First, the Board finds that the objective findings of the veteran's residual scarring of the left thumb do not warrant a separate compensable evaluation under Diagnostic Codes 7803 or 7804. Specifically, there is no evidence that the scars are poorly nourished or tender. Thus, a compensable rating would not be available under either of these codes. Next, Diagnostic Code 7805 permits an evaluation based on the limitation of function of the part affected by a scar, in this case the left thumb. The medical evidence does indicate the presence of painful limitation of motion of the left thumb at the distal interphalangeal joint. The record also reveals that the left hand is the veteran's dominant hand. Consequently, the Board finds that the veteran has some functional limitation of the left thumb and a 10 percent rating is warranted pursuant to 38 C.F.R. §§ 4.40 and 4.45 (1999), for this disability. Preliminary review of the record reveals that the RO has not expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 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 Chief Benefits Director 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 interference 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 (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). ORDER Entitlement to a 10 percent evaluation for the residuals of a shell fragment wound of the left thumb is granted, subject to the laws and regulations governing the disbursement of monetary benefits. JEFF MARTIN Member, Board of Veterans' Appeals