Citation Nr: 0006099 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-27 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable disability evaluation for residuals of a self-sustained gunshot wound (GSW) to the left index finger. 2. Entitlement to service connection for a neurological disease of the left upper extremity, to include left carpal tunnel syndrome and left nerve root sensory irritation, claimed as secondary to the service-connected residuals of a self-sustained GSW to the left index finger. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from May 1968 to May 1970. The above matters come before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). They were remanded in April 1999 to have the RO schedule a hearing before a Member of the Board, per the veteran's request. A video conference hearing was held on December 16, 1999, before Jeff Martin, who is a Member of the Board and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). A transcript of the hearing has been associated with the file. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appeal of the issue of entitlement to a compensable rating for the service-connected residuals of a self- sustained GSW to the left index finger has been obtained and developed by the agency of original jurisdiction. 2. The scar on the veteran's left index finger has been shown to currently be tender and painful on objective demonstration. CONCLUSION OF LAW The schedular criteria for a 10 percent rating for the service-connected residuals of a self-sustained GSW to the left index finger have been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.118, Part 4, Diagnostic Code 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION First Issue Entitlement to a compensable disability evaluation for residuals of a self-sustained GSW to the left index finger: Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the veteran has presented a claim for an increased rating that is well grounded or capable of substantiation. The facts relevant to this appeal have been properly developed and VA's obligation to assist the veteran in the development of this claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, Part 4 (1999) (hereinafter, "the Schedule"). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (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. 38 C.F.R. § 4.10 (1999). 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 38 C.F.R. § 4.40 (1999); see, also, DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The veteran contends that the service-connected residuals of a GSW to the left index finger should be rated higher than zero percent disabling due to the current symptoms that include pain and numbness. The record reveals that the veteran sustained a chip fracture at the base of the left index finger during service in 1969 and that he was thereafter service-connected, in the rating decision hereby on appeal, for the residuals of said injury, under the provisions of Diagnostic Code 7805 of the Schedule. See, 38 C.F.R. § 4.118, Part 4, Diagnostic Code 7805 (1999). Since this diagnostic code mandates that scars are to be rated based on the limitation of motion of the part affected, and the RO determined that there was no evidence sufficient to warrant a compensable rating under Diagnostic Code 7805, a zero (noncompensable) rating was assigned in that rating decision, in accordance with the provisions of 38 C.F.R. § 4.31 (1999), which provides for such a rating when the applicable diagnostic code does not provide a zero percent evaluation and the requirements for a compensable rating are not met. The Board notes, however, that a service-connected superficial scar can be rated as 10 percent disabling, under Diagnostic Codes 7803 and 7804 of the Schedule, if there is objective evidence that the scar is poorly nourished, with repeated ulceration, or tender and painful, respectively. See, 38 C.F.R. § 4.118, Part 4, Diagnostic Codes 7803 and 7804 (1999). The "Note" to Diagnostic Code 7804 further mandates that a 10 percent rating is to be assigned when the requirements are met, even though the location may be on the tip of a finger or toe, and the rating may even exceed the amputation value for the limited involvement. See, 38 C.F.R. § 4.118, Part 4, Note to Diagnostic Code 7804 (1999 The report of a January 1997 VA hand, thumb and fingers examination reveals complaints of numbness and tingling of the left index finger, and objective findings of a faint scar over the tip of that finger, with slight tenderness to palpation and a positive Tinel's sign. Similar complaints of a painful, functionally impaired left index finger were reported at the video conference hearing of December 1999. As noted above, there is competent evidence in the record demonstrating that the veteran's scar on the tip of his left index finger is both tender and painful. This means that the schedular criteria for a 10 percent rating for this disability have been met under the provisions of Diagnostic Code 7804 of the Schedule. A 10 percent rating is thus warranted at this time. Preliminary review of the record reveals that the RO considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extra-schedular 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 extra-schedular 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 Court has held that the Board is precluded by regulation from assigning an extra-schedular 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 A 10 percent schedular rating for the service-connected residuals of a self-sustained GSW to the left index finger is granted, this grant being subject to the VA laws and regulations addressing the disbursement of VA funds. REMAND OF THE SECOND ISSUE Entitlement to service connection for a neurological disease of the left upper extremity, to include left carpal tunnel syndrome and left nerve root sensory irritation, claimed as secondary to the service-connected residuals of a self-sustained GSW to the left index finger: This issue needs additional development. As noted earlier, the veteran has been found to apparently have a neurological disease, but the actual nature and etiology of this disease have yet to be clarified. In this regard, it is noted that the subscriber of the report of the January 1997 VA neurological examination vaguely described the disease, as noted earlier in the decision portion of the present decision/remand, and said that the veteran "would benefit from an EMG and nerve conduction studies of his left upper extremity and neck X-Rays." These studies have yet to be conducted. Thereafter, the veteran would need to be re- examined by a VA neurologist, in order to have this expert interpret all the studies performed, and express an opinion regarding both the nature and etiology of the neurological disease, or diseases. Also, the Board has not been able to find in the file copies of the reports of the above mentioned X-Rays of the veteran's left wrist and left hand which, according to the report of the January 1997 VA hand, thumb and fingers examination, were obtained on that date, and which may (or may not) contain the radiologist's opinion of causation to which the veteran's spouse made reference in December 1999, at a videoconference hearing. It was asserted at that time, in effect, that the VA radiologist who obtained the X-Rays in January 1997 had indicated to them that there was a possible relationship between the service-connected left finger injury and the other disorders of the left upper extremity. The examiner should be asked to conduct a thorough review of the evidentiary record prior to the examination. It is requested that consideration be extended to any pre-service problems the veteran may have had with his wrist, as well as any post-service activities or traumas, in the process of assessing whether a claimed element of disability is due to service or is a secondary residual of a service-connected disability. The examiner should be asked to take this evidence into consideration when rendering his or her opinion in this case. While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, it is felt that proceeding with a decision on the merits at this time would not withstand scrutiny by the Court. For that reason, and in order to ensure due process and compliance with VA's duty to assist every claimant in the development of his or her claim, the case is REMANDED to the RO for the following additional development: 1. The RO should secure the following evidence, and associate it with the claims folder: A. Copies of the reports of the January 1997 VA X-Rays of the veteran's left wrist and left hand. If this evidence cannot be located for any reason, the RO should then inform the VA neurologist who will examine the veteran about this, so that he or she can order the studies at the appropriate time. B. Copies of any other VA and/or private records, not yet in the file, reflecting inpatient and/or outpatient medical treatment received by the veteran for his problems with his left upper extremity between May 1970 and the present time, if any. 2. The veteran should be notified that he is free to submit statements from medical professionals who have expressed their belief that there is a causal relationship between the disorders at issue. 3. In addition to the above, the veteran should be scheduled for a VA neurological diseases (or disorders) examination. After performing a thorough review of the file, the examiner should then be asked to obtain from the veteran information regarding his job history since his discharge in May 1970, conduct a comprehensive neurological examination of the veteran, concentrating on his left upper extremity, order any necessary neurological tests and other studies that would be deemed appropriate to rendering an opinion as to whether there is a reasonable basis for finding an etiological relationship between the service-connected left finger disorder, and any other disorder of the left upper extremity, and thereafter submit a legible report of examination that should include, at least, the following information: A. A statement as to whether he or she reviewed the claims folder prior to the examination. B. A list of all neurological diseases currently affecting the veteran's left upper extremity, if any, and a thorough description of each one of such diseases, including their symptomatology. C. For each neurological disease diagnosed, his or her opinion regarding its etiology, including an answer to the question of whether it is as likely as not that each diagnosed neurological disease is secondary to the inservice GSW to the left index finger, or can otherwise be related to service. The examiner should be asked to include in the report the rationale for his or her opinions. 4. After the development requested above has been completed, the RO should again review the record in light of all the additional evidence received since the July 1997 Statement of the Case and re- adjudicate the matter on appeal. If, upon re-adjudication, the benefit sought on appeal remains denied, both the veteran and his representative should be furnished a Supplemental Statement of the Case, and given the opportunity to respond thereto with additional argument and/or evidence. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). Thereafter, the case should be returned to the Board. The veteran need take no action until notified. However, as noted above, he should be advised that he has the right to submit additional evidence and argument on the matter that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The above 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. JEFF MARTIN Member, Board of Veterans' Appeals