Citation Nr: 0002571 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-14 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable rating for postoperative residuals of distal interphalangeal joint fusion of the right ring finger. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas H. O'Shay, Associate Counsel INTRODUCTION The veteran had active military service from August 1988 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) from a November 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was transferred to the RO in Muskogee, Oklahoma, in April 1997. This case was remanded by the Board in July 1998 for further development; it was returned to the Board in September 1999. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's postoperative residuals of distal interphalangeal joint fusion of the right ring finger are manifested by ankylosis of the distal interphalangeal joint, without evidence of extremely unfavorable ankylosis. CONCLUSION OF LAW The criteria for a compensable evaluation for postoperative residuals of distal interphalangeal joint fusion of the right ring finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5155, 5227 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In this regard, the Board notes that the veteran has apparently moved without informing VA, his representative or the U.S. Postal Service of his new address. Correspondence to the veteran since at least June 1999 at his last address of record has been returned as undeliverable, and the veteran failed to report for VA examination in December 1998. Review of the record reflects that efforts by the RO to determine the veteran's whereabouts have been unavailing. In the normal course of events, it is the burden of the veteran to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). As the record reflects that the RO has undertaken adequate efforts to determine the veteran's current address, and since there is no indication in the record of a plausible alternative address for the veteran, the Board concludes that further efforts to locate the veteran are not required prior to adjudication of the veteran's appeal. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Briefly, as was noted in the Introduction, the veteran's service ended in June 1996. Service connection for postoperative residuals of distal interphalangeal joint fusion of the right ring finger was granted in November 1996, evaluated as noncompensably disabling. This evaluation has remained in effect since that time. Service medical records show that the veteran sustained a right ring finger flexor digitorum profundus tendon rupture in September 1995. Following exploration of the flexor tendon, the veteran underwent fusion of the distal interphalangeal (DIP) joint of the right ring finger in December 1995, resulting in fixation of that joint at a 20 to 25 degree angle. The records indicate that the veteran thereafter underwent removal of retained hardware in April 1996. The remaining service medical records are negative for further reference to the veteran's right ring finger. The records document that the veteran is right hand dominant. In an April 1997 statement, the veteran asserted that he could not use his right ring finger and that he experienced pain and immobility in the finger during the winter months. The RO evaluated the veteran's postoperative residuals of DIP joint fusion of the right ring finger as noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5227 (1999). That code provides that ankylosis of the ring finger warrants a noncompensable evaluation only. However, extremely unfavorable ankylosis of an individual digit will be rated as an amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5227 and Note. Ankylosis is considered favorable if flexion of the finger to within 2 inches of the transverse fold of the palm is possible. 38 C.F.R. § 4.71a, Note preceding Diagnostic Code 5216. Amputation of the ring finger without metacarpal resection, at proximal interphalangeal joint or proximal thereto, warrants a 10 percent evaluation. A 20 percent evaluation is warranted for amputation of the ring finger with metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a, Diagnostic Code 5155 (1999). The medical evidence on file concerning the veteran's postoperative residuals of DIP joint fusion of the right ring finger is limited to his service medical records which show only that he underwent fusion of the distal interphalangeal joint of the right ring finger in December 1995, resulting in fixation and ankylosis of the joint at 20 to 25 degrees, with removal of the hardware in April 1996; those records do not address whether the ankylosis of the DIP joint was unfavorable. As noted previously, the veteran was scheduled for an examination in December 1998 to provide the medical findings necessary to determine if a compensable rating is warranted, but he failed to report. In Wood v. Derwinski, 1 Vet. App. 190 (1990), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals before March 1, 1999, hereinafter Court) stated that the duty to assist is not a one-way street, and an appellant must do more than passively wait for assistance when he has information essential to his claim. Id. at 193. Since the veteran has prevented full development of his claim by refusing to appear for a VA disability examination scheduled pursuant to the Board's July 1998 remand, the Board can only address the evidence currently of record. There is no medical evidence substantiating the presence of significant pain associated with the disability, nor is there medical evidence of excess fatigability, weakness or incoordination associated with the disability. The service medical records show that the ankylosis is at an angle which would permit the finger tip to flex to within 2 inches of the transverse fold of the palm. In light of the evidence showing that the ankylosis of the veteran's right ring finger is limited to the DIP joint, and as there is no medical or other evidence, and the veteran does not contend, that the joint is unfavorably ankylosed, the Board concludes that the diagnostic code relating to amputation of the ring finger is not for application. Accordingly, as a noncompensable rating is the highest rating available for ankylosis of the ring finger, absent the presence of extremely unfavorable ankylosis, a compensable evaluation for the veteran's right ring finger disability is not warranted. 38 U.S.C.A. § 5107. ORDER Entitlement to a compensable rating for postoperative residuals of distal interphalangeal joint fusion of the right ring finger is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals