Citation Nr: 0000938 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-05 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for residuals of a right knee injury. 3. Entitlement to service connection for residuals of a low back injury. 4. Entitlement to service connection for residuals of a neck injury. 5. Entitlement to a compensable rating for residuals of a fracture of the right ring finger. 6. Entitlement to a compensable evaluation pursuant to 38 C.F.R. § 3.324 (1999). ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from October 1984 to October 1994. He served in the Southwest Asia theater of operations during the Persian Gulf War. This appeal arises from a January 1997 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In that determination, service connection was granted for residuals of a fracture of the right fifth metacarpal, residuals of a fracture of the right ring finger, and for post appendectomy. Noncompensable ratings were assigned. Service connection was denied for residuals of a hearing loss, residuals of injuries of the right knee, back, and neck. Additionally, a compensable evaluation under 38 C.F.R. § 3.324 was denied. In April 1998, the veteran submitted a VA FORM 9 in which he stated that he believed that "the 7 items I claimed are valid." He provided specific argument to the following claims: residuals of a fracture of the right ring finger, hearing loss, right knee, back, and neck. As the veteran made no specific argument regarding the RO's grant of service connection for residuals of a fracture of the right fifth metacarpal and post appendectomy, the Board concludes that these awards of service connection were a grant of the benefits requested. Cf. AB v. Brown, 6 Vet. App. 35 (1993). In August 1998, the RO confirmed the noncompensable rating in effect for the right ring finger disorder and continued the denials of service connection for hearing loss and for residuals of injuries to the right knee, back, and neck. These issues are still on appeal. The Board also concludes that the issue of entitlement to a compensable rating pursuant to 38 C.F.R. § 3.324 continues on appeal. All of the issues on the title page other than the issue of entitlement to a compensable rating for residuals of a right ring finger fracture will be addressed at the end of this decision under the heading, "Remand." FINDINGS OF FACT Residuals of a fracture of the right fifth finger include complaints of limitation of motion, but the most recent clinical findings reflect normal range of motion and no tenderness or numbness of the finger. CONCLUSION OF LAW The criteria for a compensable rating for residuals of a fracture of the right fifth finger have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5155, 5227 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Evaluations When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 126 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board notes that in the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claim. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a) . Disability evaluations 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. 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). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Factual Background A review of the service medical records (SMRs) reveals trauma to the right ring finger in November 1991. X-ray showed a fracture. Service connection was established upon rating determination in January 1997. A noncompensable rating was assigned, effective from September 30, 1996, the date the veteran filed a claim for compensation benefits. Post service VA examination of the finger in March 1998 found that the veteran complained that the finger did not bend as much as the ring finger on the left hand. He said that he was afraid that he would get arthritis in the future. He was on no medication for his complaints. Examination there was no deformity. The ring finger showed no tenderness. There was no clicking of the tendon. Both profundus and superficialis tendon worked well, and he was able to hyperextend his fingers normally on the right. He was able to make a fist and tuck his fingers. The examiner founds that the range of motion was completely normal, and there was no numbness. X-ray was also interpreted as normal. The final diagnosis was history of injury to the finger with no residual. Analysis The Rating Schedule does not include a DC specifically related to metacarpal fracture residuals, and, as provided in 38 C.F.R. § 4.20 and § 4.27, the disability must be rated under the diagnostic code for a closely related injury. The RO has rated the fifth metacarpal fracture residuals as analogous to ankylosis of the thumb under 38 C.F.R. § 4.71a, Diagnostic Code 5224. The Board notes, however, that Diagnostic Code 5227 is the code for rating ankylosis of the ring finger or little (fifth) finger, and in the Board's judgment disability of the right ring finger would be more closely analogous to disability of the fifth metacarpal than would disability of the thumb. The Board will therefore rate the veteran's residuals of a fracture of the right ring finger as analogous to ankylosis of that finger. In a note preceding Diagnostic Code 5220, 38 C.F.R. § 4.71a provides that in classifying the severity of ankylosis and limitation of motion of single digits and combinations of digits, the following rules will be observed: (1) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, with either joint in extension or in extreme flexion, will be rated as amputation; (2) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, even though each is individually in favorable position, will be rated as unfavorable ankylosis; (3) With only one joint of a digit ankylosed or limited in its motion, the determination will be made on the basis of whether motion is possible to within 2 inches (5.1 centimeters) of the median transverse fold of the palm; when so possible, the rating will be for favorable ankylosis, otherwise unfavorable ankylosis. See 38 C.F.R. § 4.71. Under Diagnostic Code 5227, ankylosis of the ring finger warrants a noncompensable rating. A note following the code indicates that extremely unfavorable ankylosis of the ring finger will be rated as amputation under Diagnostic Code 5155. Under Diagnostic Code 5155, amputation of the ring finger at the proximal interphalangeal joint, or proximal thereto, without resection of the metacarpal warrants a 10 percent rating. Amputation of the ring finger with metacarpal resection (more than one-half of the bone lost) warrants a 20 percent rating under Diagnostic Code 5155. Upon review of the record, the Board finds that the veteran's residuals of a fracture of the right ring finger include complaints of limitation of motion, but the March 1999 examination revealed a physician's opinion that range of motion was normal. There was no deformity, no numbness and no tenderness in the finger. As there is no evidence of extremely unfavorable ankylosis of the right ring finger or impairment of function of the right hand due to fracture residuals, a compensable rating is not warranted under Diagnostic Code 5155. While it is not apparent whether the RO considered 38 C.F.R. §§ 4.40, 4.45, and 4.59, there was no reported evidence of weakened movement, excess fatigability or incoordination involving the right ring finger or any part of the right hand. Even with consideration of 38 C.F.R. §4.40, 4.45 and 4.59, it is the opinion of the Board that neither alone, nor with consideration of the veteran's complaints of limitation of motion, does the evidence indicate functional impairment due to residuals of a fracture of the right ring finger such that the disability meets or more nearly approximates the criteria for a compensable rating under any potentially applicable diagnostic code. ORDER A compensable rating for residuals of a fracture of the right ring finger is denied. REMAND As to the issues on appeal regarding service connection, additional development is necessary. In November 1994, Congress enacted the Veterans Benefit Improvement Act of 1994 (P.L. 103-446) to provide compensation for Persian Gulf War veterans with undiagnosed illnesses. This Act added 38 U.S.C.A. § 1117 to the U.S. Code effective November 2, 1994. In response, VA amended the Adjudication section of Title 38 of the Code of Federal Regulations regarding the criteria for compensation for certain disabilities due to undiagnosed illnesses. 38 C.F.R. § 3.317 (1999). This amendment was effective during the pendency of this claim. See 60 Fed. Reg. 6665 (February 3, 1995). Under the new criteria, a Persian Gulf War veteran who served in the Southwest Asia theater of operations can be granted service connection for chronic disabilities resulting from an undiagnosed illness or combination of illnesses manifested by certain listed symptoms. The record reflects that the veteran served in the Southwest Asia theater from October 2, 1990, to October 1, 1994. The regulations mentioned above list joint pain as a possible manifestation of an undiagnosed illness. See 38 C.F.R. § 3.317(b) (1999). The new regulations were not addressed by the RO in the rating decisions in January 1997 and August 1998. The Board's review of the claims file does not indicate that the veteran has been given notice of the new regulations and has not had an opportunity to submit evidence and argument related to the new regulations. Therefore, the Board finds it is appropriate to remand his claims for service connection to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO should evaluate his claims for service connection under the new regulations regarding compensation for undiagnosed illness and under the regulations for direct service connection. As to application of 38 C.F.R. § 3.317 and the issue of entitlement to service connection for bilateral hearing loss, the Board notes that upon recent VA audiometric examination in March 1998, a mild, bilateral high frequency hearing loss was noted. This diagnosis was based on the following audiometric results. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 40 LEFT 5 5 5 10 30 Speech audiometry revealed speech recognition ability of 96 percent in each ear. The Board points out that while the examiner reached a conclusion that the veteran's hearing impairment was bilateral, the clinical findings suggest hearing impairment in the right ear under 38 C.F.R. § 3.385, but the presence of an impaired hearing disability in the left ear is not indicated. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a disability for VA service connection purposes when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (1999). In the instant case, as it might be argued that there is no diagnosed illness in the left ear, consideration of 38 C.F.R. § 3.317 in that ear alone is necessary. Accordingly, while the Board regrets the delay, these claims are REMANDED to the RO for the following: The RO should readjudicate the veteran's claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. In particular, the RO should evaluate the claims for service connection for the claimed disabilities under 38 C.F.R. § 3.317. If the decisions with respect to the claims remain adverse to the veteran, he and his representative should be furnished a supplemental statement of the case, which includes the criteria regarding service connection for undiagnosed illnesses, and be given a reasonable period of time within which to respond thereto. Thereafter, the claim is to be returned to the Board, following applicable appellate procedure. The veteran need take no action until he is so informed. He is, however, free to submit additional evidence or argument to the RO on remand. Quarles v. Derwinski, 3 Vet. App. 129 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). Finally, consideration of the issue of entitlement to a 1 0 percent rating for multiple noncompensable ratings under 38 C.F.R. 3.324 should be deferred pending the above-referenced development. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals