Citation Nr: 0001130 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-20 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder, to include benign skin and cracking and bleeding nubs. 2. Entitlement to an increased rating for amputation, distal phalanx of left index, middle, and ring fingers, with traumatic arthritis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from December 1950 to January 1955. The issues currently on appeal come before the Board of Veterans' Appeals (Board) from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. It is noted that the RO, in June 1998, denied service connection for benign skin, cracking and bleeding nubs, on a direct basis. The veteran's representative, as shown as part of an Informal Hearing Presentation dated in July 1999, contended that the claim was more appropriately to be adjudicated as a claim for service connection secondary to the veteran's service-connected left hand multiple finger amputation disability. This issue has not been adjudicated in this manner by the RO and is referred to the RO for appropriate action. The Board notes, in so doing, that this matter is not inextricably intertwined with the issue of direct service connection for a skin disorder, which is adjudicated herein. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claims has been developed. 2. There is no competent medical evidence of record that clinically confirms the current presence of a benign skin disability in the area of the multiple finger amputations, to include cracking and bleeding nubs. 3. The evidence of record currently demonstrates that the veteran has amputation of the left index and middle fingers at the level of the distal interphalangeal joints, and an amputation of the ring finger at the level of the proximal aspect of the distal phalanx. CONCLUSIONS OF LAW 1. The veteran's claim for entitlement to service connection for skin disorder, to include benign skin and cracking and bleeding nubs, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating in excess of 20 percent for amputation, distal phalanx of left index, middle, and ring fingers, with traumatic arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5138, 5222 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The threshold question that must be resolved with regard to a claim is whether the appellant has met his initial obligation of submitting evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation that a disorder should be service connected is not sufficient; the appellant must submit evidence in support of a claim that would justify a belief by a fair and impartial individual that the claim is plausible. See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). If a claim is well grounded VA has a statutory duty to assist the appellant in the development of facts pertinent to his claim. Service connection may be granted for a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 1991). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the disorder noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The veteran and his representative contend, in essence, that service connection for benign skin problems in the area of the veteran's amputated fingers, to include cracking and bleeding nubs, is warranted in this case. Specifically, it is contended that the veteran's affected fingers get cold easily in the wintertime and, when they crack open, become painful. A service medical record dated in November 1952 shows that a hatch cover fell on the veteran's left hand while he was descending through a scuttle hatch, resulting in amputation of the ends of his left index, middle, and ring fingers. Examination accomplished in December 1954 showed a somewhat hyperkeratotic scar on the palmar aspect of the left index finger, with the scar described as non-adherent and without hyperesthetic areas or palpable neuromata. A similar, though larger, area of hyperkeratosis on the palmar aspect of the middle finger was noted; the scar was described as somewhat hyperesthetic. Concerning the veteran's amputated left ring finger, a scar was noted on the terminal aspect, which was described as neither adherent nor tender. The Report of Medical Examination at separation dated in January 1955 showed that clinical evaluation of the veteran's skin was described as normal. The pertinent postservice medical evidence of record is shown to consist solely of a report of a VA examination dated in December 1997. It is noted that while certain VA outpatient treatment records have been associated with the claims folder, dated in 1996 and 1997, a review of these records does not reveal that the veteran had either complained of, or sought treatment for, his claimed skin disorder. Review of the December 1997 VA examination report shows that the ends of several of the veteran's fingers were noted to have been amputated as a result of the above-mentioned inservice incident, and it was reported that the veteran had not sought medical advice concerning his fingers in the past. The veteran indicated that his injured fingers became cold easily in the wintertime, would crack open, and become painful as a result. He noted that he used Vaseline over the years as a prophylaxis. He also noted that the symptoms had worsened over the past 5 years and that he had also noted some swelling across the knuckles of both hands, which he did not feel was related to his finger problems. The report noted that the veteran was right-handed and that he was not using his left hand much as he was no longer working. Examination revealed that the skin of the left hand was of normal color and that no tenderness was elicited. The scars on the fingertips were noted to be well-healed and nontender, and no sign of cracking was shown. The diagnosis was status post traumatic amputation of the second and third fingers of the left hand at the distal interphalangeal joints, and fourth finger at the proximal aspect of the distal phalanx, with minimal functional disability. A lay statement was submitted on behalf of the veteran's claim for service connection in August 1998. The statement, from a co-worker of the veteran, indicated that he had worked with the veteran since 1990 and had witnessed the nubs on the fingers on the veteran's left hand crack and bleed requiring the veteran to cease working and apply Vaseline. He added that this occurred most often when the weather was cold outside or when the veteran was using his hands. To summarize, the recent VA examination showed that the skin relating to the affected amputated fingers was of normal color and that no tenderness was elicited. In addition, the report indicated that the scars on the tips of the fingers were well-healed and nontender, and that there was no sign of cracking. As previously set forth, in order to have a well- grounded claim, there must be medical evidence showing the presence of the disability in issue. Without current medical evidence confirming the presence of a skin disability, such as cracking and bleeding of the finger nubs, the veteran's claim is not well grounded and must be denied. When the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit, supra. Lay assertions of medical causation, or substantiating a current diagnosis, cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board finds that the RO has complied with 38 U.S.C.A. § 5103(a) (West 1991) and that the claimant had been advised of the evidence necessary to complete his claim. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The Board notes that the veteran is always free to submit new and material evidence to reopen the claim for entitlement to service connection for skin disorder, to include benign skin and cracking and bleeding nubs, such as medical evidence tending to show that he currently has such a disability which is related to service or to a service-connected disability. Increased Rating Initially, the Board finds that the veteran's claim for an increased rating is well grounded, in that he has presented a plausible claim. 38 U.S.C.A. § 5107(a) (West 1991). Murphy, supra. A claim that a disorder has become more severe is well grounded where the disorder was previously service- connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), the Board is obligated to assist the veteran in the development of a well- grounded claim. Upon a review of the record, the Board finds that all of the evidence necessary for adjudication of his claim has been obtained. In particular, all relevant VA medical records have been obtained, and the veteran was afforded a VA examination to assess his pertinent, to this current appeal, disability. Therefore, the duty to assist the veteran, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Where entitlement to VA compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although recorded history of the disability may be reviewed in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1999), the regulations do not give past medical reports precedence over current findings. Francisco, supra. Disability ratings are based on schedular requirements, which reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 1991). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (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 (1999). Also, 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). Pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Service connection for amputation of the distal phalanx of the left, middle, and ring fingers of the left hand was established by means of a March 1955 rating decision. At that time a 20 percent rating evaluation was assigned pursuant to Diagnostic Code "5222-887." The 20 percent rating has been in effect since that time. In addition, this rating has remained in effect since then and is now protected. See 38 U.S.C.A. § 110 (West 1991); 38 C.F.R. § 3.951(b) (1999). The 20 percent rating criteria currently assigned for the left hand finger amputations by the RO is pursuant to the VA's Schedule of Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule). Under Diagnostic Code 5222, favorable ankylosis of three digits of the minor hand (index, middle, and ring), warrants a rating of 20 percent. A higher evaluation of 30 percent is not for evaluation unless the thumb and two other fingers are favorably ankylosed. Associated with Diagnostic Code 5222 is the following note: (b) Combination of finger amputations at various levels, or of finger amputations with ankylosis or limitation of motion of the fingers will be rated on the basis of the grade of disability, i.e., amputation, unfavorable ankylosis, or favorable ankylosis, most representative of the levels or combinations. With an even number of fingers involved, and adjacent grades of disability, select the higher of the two grades. In addition, under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. Also for consideration in the instant case is Diagnostic Code 5138. Under Diagnostic Code 5138, amputation of the index, middle and ring finger is rated as 40 percent disabling for the minor hand. However, attention is directed to note (c) associated with the rating of multiple finger amputations. This note indicates that "[a]mputations at distal joints, or through distal phalanges, other than negligible losses, will be rated as prescribed for favorable ankylosis of the fingers." A review of the evidence reflects that during the appeal period the RO considered the veteran's service medical records, the above-discussed August 1998 lay statement, and the above-discussed report of VA examination afforded the veteran in December 1997. The Board notes that while VA outpatient treatment records associated with treatment afforded the veteran in 1996 and 1997 are of record, review of these records fails to show that he was treated for his service-connected left hand multiple finger amputation disability. The report of the December 1997 VA examination reveals that the veteran's fingers were crushed when a steel hatch fell on them in 1952. The ends of his index, middle, and ring fingers were noted to have been amputated as a result of the incident, and it was reported that the veteran had not sought medical advice concerning his fingers in the past. The veteran indicated that his injured fingers became cold easily in the wintertime and cracked open, becoming painful. He noted that he used Vaseline over the years as a prophylaxis. He also noted that the symptoms had worsened over the past 5 years and that he had also noted some swelling across the knuckles of both hands, which he did not attribute to residuals of his inservice injury. The report noted that the veteran was right-handed and that he was not using his left hand much as he was no longer working. Examination revealed an obvious loss of the distal phalanx of the index, middle, and ring fingers of the left hand. He had good grip bilaterally and was able to adduct, abduct, flex, and extend all fingers normally. The skin of the left hand was noted to be of normal color and no tenderness was elicited. The scars on the fingertips were noted to be well- healed and nontender, and no sign of cracking was shown. X- ray examination of the left hand showed no fractures. Amputation of the second and third fingers at the level of the distal interphalangeal joints, and an amputation of the fourth finger at the level of the proximal aspect of the distal phalanx, was reported. Mild degenerative changes were shown. The diagnosis was status post traumatic amputation of the second and third fingers of the left hand at the distal interphalangeal joints, and fourth finger at the proximal aspect of the distal phalanx, with minimal functional disability. To summarize, the statements provided by the veteran and his co-worker describing symptoms experienced by the veteran are considered to be competent evidence. Espiritu, supra. However, these statements must be viewed in conjunction with the objective medical evidence. Applying the above-cited regulations to the instant case, the evaluation of the amputations of the veteran's index, middle, and ring fingers of the left hand are to be rated as prescribed for favorable ankylosis of the fingers. See Note (c) to Diagnostic Code 5138. Under Diagnostic Code 5222, as noted above, a 20 percent rating is for application for favorable ankylosis of three digits of the minor hand, where, as in this case, the thumb is not involved. This 20 percent rating is the maximum schedular evaluation under the facts of this case under Diagnostic Code 5222. It is again noted that this 20 percent disability rating is protected. See 38 U.S.C.A. § 110 (West 1991); 38 C.F.R. § 3.951(b) (1999). It is also noted that the veteran is right handed; that is, his left hand is his minor extremity. Accordingly, it is the Board's judgment that the current findings and symptoms resulting from the multiple left hand amputations and the arthritis, to include the functional impairment caused by the pain as set forth in the DeLuca case, are included in the 20 percent rating, and a rating in excess of 20 percent is not warranted. Also, as indicated in the December 1997 VA X-ray report, mild degenerative changes of the hand were diagnosed, but not of the service-connected fingers. Thus, a separate rating is not warranted for arthritis in this case. The Board does not find that any of the other applicable provisions of Chapters 3 and 4, 38 C.F.R. (1999), provide a basis for granting an increased rating for the multiple finger amputation disability currently at issue. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Additionally, the evidence does not reflect that the degree of impairment more nearly approximates the criteria for the next higher evaluation pursuant to 38 C.F.R. § 4.7 (1999), nor is the evidence in equipoise as to warrant consideration of the benefit of the doubt rule. 38 C.F.R. § 4.3 (1999). ORDER Entitlement to service connection for a skin disorder, to include benign skin and cracking and bleeding nubs, is denied. Entitlement to an increased rating in excess of 20 percent for amputation, distal phalanx of left index, middle, and ring fingers, with traumatic arthritis, is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals