Citation Nr: 0001693 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-08 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased (compensable) disability for residuals of a gunshot wound (GSW) of the right thumb. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from November 1951 to October 1953. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the San Juan, Puerto Rico, Department of Veterans (VA), Regional Office (RO), which denied entitlement to the benefits sought. The veteran filed a timely notice of disagreement, and was issued a statement of the case in May 1998. The RO received his substantive appeal later that month. Following additional development, the veteran was issued a supplemental statement of the case in October 1998. The veteran's claim for a permanent and total disability rating for pension purposes is the subject of the 'REMAND,' appended to the end of this decision. FINDING OF FACT The veteran's GSW residuals, as shown by recent VA examination, is primarily manifested by a 0.5 centimeter long by 1 millimeter wide fading scar, brownish in color, on the proximal aspect and a 0.5 centimeter long by 1 millimeter wide, linear shaped scar with loss of color on the distal aspect of the thenar area, just a the base of the thumb. The scars are non-tender and non-disfiguring and there is no evidence of any muscle injury or anatomical defect. CONCLUSION OF LAW The schedular criteria for an increased (compensable) disability rating for residuals of a GSW of the right thumb are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim of entitlement to an increased (compensable) disability rating for residuals of a GSW of the right thumb is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. Generally, a claim for an increased evaluation is considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition 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). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, 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). VA also has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issue raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1 (1999), that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 (1999) which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 (1999) states that, in cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. §§ 4.40, 4.45 (1999); see also DeLuca v. Brown, 8 Vet. App. 202, at 204-206, 208 (1995). These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In the instant case, the veteran's service medical records confirm that he suffered a perforating gunshot wound of the thenar eminence of the right thumb with no major artery or nerve involvement in April 1953. The RO subsequently granted service connection and assigned an initial noncompensable disability rating under Diagnostic Code 7805 in a February 1973 rating decision. Where entitlement to compensation has been already established and an increase in disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In the instant case, the veteran was last afforded VA examination for compensation and pension purposes in August 1997, at which time he complained of pain in the right thumb upon doing abduction. Upon grabbing a cup of coffee, he complained of numbness of the right hand fingers. The veteran also referred to loss of strength of the right thumb. It was noted that the veteran is right-handed. On physical examination, the veteran was found to have no anatomical defects of the right hand. The veteran could touch the tip of his right thumb and the tip of all fingers of the right hand. He could also touch with the tip of all fingers of the right hand, the median transverse fold of the palm of the right hand. On the proximal aspect of the right thumb, there was a 0.5 centimeter long by 1 millimeter wide fading scar, brownish in color, which was not tender to palpation. On the distal aspect of the thenar area, just at the base of the thumb, there was a 0.5 centimeter long by 1 millimeter wide linear-shaped scar with loss of color, which was not tender to palpation. It was also a fading scar. These scars were not inflamed or swollen, and had no depression. There was a good vascular supply with no ulceration, adherence or herniations. They were not cosmetically disfiguring and were not affecting the function of the part effected. Muscle strength of the right hand grip muscles was 5/5, which is normal. There was no muscle atrophy of any muscle of the right hand and thumb. The veteran had full range of motion of the right wrist, which was noted to be pain free. He also had full range of motion of the right thumb, which was noted to be pain free. The diagnosis was residuals of a GSW to the right thumb with residual scar, healed. According to Diagnostic Code 7805 (1999), scars are to be rated based upon the limitation of function of the affected part. In the case of superficial scars a 10 percent disability evaluation is warranted for those that are poorly nourished with repeated ulceration, 38 C.F.R. Part 4, Diagnostic Code 7803 (1999), or which are tender and painful on objective demonstration, 38 C.F.R. Part 4, Diagnostic Code 7804 (1999). Review of the most recent VA compensation examination reveals that the veteran's current symptomatology is not consistent with a compensable disability evaluation. Indeed, the August 1997 VA examination report does not reflect findings of a tender, painful, or poorly nourished scar such that a compensable rating under Diagnostic Codes 7803, 7804 and 7805 is justified. Although the medical evidence establishes that the veteran's GSW was a through and through injury, there is no objective medical evidence of muscle injury or anatomical deformity of the right hand. Moreover, the veteran could touch the tip of his right thumb and the tip of all fingers of the right hand. Therefore, entitlement to separate disability evaluations under the criteria set forth in 38 C.F.R. §§ 4.71a (Diagnostic Codes 5216-5226) and 4.73 (Diagnostic Code 5307-5309) are not for application. See Esteban v. Brown, 6 Vet. App. 259 (1994) (a disability can be assigned a separate disability evaluation under different diagnostic codes, providing that the symptomatology so rated is not duplicative or overlapping). As the Board knows of no other basis which would provide the veteran with a higher schedular evaluation, his claim for an increased (compensable) disability rating is denied. Moreover, application of the extraschedular provisions is also not warranted in this case. 38 C.F.R. § 3.321(b) (1999). There is no objective evidence that this service-connected disability presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An increased (compensable) disability rating for residuals of a GSW of the right thumb is denied. REMAND The veteran's nonservice-connected (NSC) disabilities include a left foot disorder; a right arm disorder; an ear condition; hypertension, benign prostatic hypertrophy; and chronic dermatophytosis, each rated as noncompensable. His total combined disability rating is 10 percent. Nonetheless, he contends that his nonservice-connected disabilities have rendered him permanently disabled and unemployable. A longitudinal review of the record reveals that the RO last rated all of the veteran's nonservice-connected disabilities for compensation and pension purposes in June 1996, almost 4 years ago, and the sparse medical evidence submitted since that time is inadequate for the purpose of determining the nature and severity of these disabilities. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (where an appellant claims a condition is worse than when "originally rated," and the available evidence is "too old" for an adequate evaluation of the appellant's current condition, VA's duty to assist includes providing a new examination). Additionally, the Board observes that since the RO's June 1996 rating decision, various amendments became effective as to sections of the VA Schedule for Rating Disabilities (Rating Schedule) pertaining to the Cardiovascular System (January 12, 1998) and Diseases of the Ear (June 10, 1999). The Court of Appeals for Veterans Claims (Court) has held that, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary of the VA to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Because Congress has not provided otherwise in this particular instance, the Board concludes that the veteran should be afforded the opportunity to undergo a new examination and have his claim reviewed under the most favorable of the applicable rating criteria. Karnas, supra. Furthermore, in rating musculoskeletal disabilities, 38 C.F.R. § 4.40 (1999) (regarding functional loss due to pain) must be considered apart from and in addition to the appropriate Diagnostic Code(s). See DeLuca, 8 Vet. App. at 204-206, 208. Additionally, it is noted that that several decisions of the Court have redefined the approach to be taken in adjudication of claims for entitlement to a permanent and total disability rating for pension purposes. Talley v. Derwinski, 2 Vet. App. 282 (1992); Brown v. Derwinski, 2 Vet. App. 444 (1992). The Court discussed in the aforementioned decisions, in pertinent part, the need to ascertain all disabilities affecting employability, accumulate medical data pertinent to the nature and severity of those disorders, and rate those entities under the VA's Rating Schedule. The Court has also instructed that when considering pension claims, the VA should make sure that each of the veteran's disabilities has been assigned a rating under the Rating Schedule. Roberts v. Derwinski, 2 Vet. App. 387 (1992). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The veteran should be requested to identify all sources of recent treatment received for his various nonservice- connected disabilities, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records from all sources he identifies should then be requested. All records obtained should be added to the claims folder. 2. The RO should then schedule the appellant for a VA general medical examination and special otolaryngological, cardiovascular, genitourinary, dermatologic and orthopedic examinations for purposes of determining whether he is permanently and totally disabled for pension purposes. In particular, the examiners are requested to give an opinion as to the effect of the disabilities on employability. All indicated tests and studies, to include appropriate range of motion studies and audiometric testing, should be done. All subjective complaints and objective findings should be reported in detail. As to his orthopedic disabilities, the examiners should provide a thorough description of any observations of pain on motion, deformity, excess fatigability, incoordination, weakened movement and other functional limitations. Therefore, the veteran's claims folder should be made available to each examiner prior to his/her examination of the veteran, and the examiners are asked to review the claims folder prior to the examinations in order to reconcile the clinical reports of record. In addition, the examiners should render an opinion as to the severity of each disability found and the impact each disability has, whether singularly or in combination, on the appellant's employability. 3. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If any of the examination reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, that report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. The RO should also review all the evidence in reference to the veteran's claim for a permanent and total disability rating for pension purposes and if any change in the ratings assigned in the June 1996 rating decision is warranted by the new evidence, or if the veteran is found to have any ratable disability not evaluated at that time, a new rating should be prepared to ensure that each of the veteran's disabilities has been assigned a rating under the Rating Schedule. To this end, review should be undertaken in light of DeLuca, supra and with consideration given to any additional evidence that may have been added to the record. In addition, consideration should be given to the provisions of 38 C.F.R. §§ 4.40, 4.45 (1999) and any additional applicable laws and regulations. 5. The evaluations assigned for the veteran's disabilities which can be considered for pension purposes should be combined under the combined ratings table of the Rating Schedule. 38 C.F.R. § 4.25 (1999). The RO should then consider whether what the Court has referred to as the "average person" test provided under 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. § 4.15 (1999) is applicable. Talley, supra; Brown, supra. 6. If the benefit sought on appeal remains denied, the RO should consider whether both the percentage requirements and the permanency requirement are met, and if so, whether the veteran is unemployable as a result of what the Court has referred to as "lifetime" disabilities. Brown, 2 Vet. App. at 447. 7. If this determination remains unfavorable to the veteran in any way, he should be furnished a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted and any additional applicable laws and regulations. This document should include detailed reasons and bases for the decisions reached. Thereafter, the veteran should be afforded the opportunity to respond thereto. The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the veteran's appeals. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending any portion of the requested VA examination may result in an adverse determination, in whole or in part. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. No action is required of the veteran until he receives further notice. 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. A. BRYANT Member, Board of Veterans' Appeals