Citation Nr: 0004084 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-36 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a compensable disability evaluation for right (major) ring finger ankylosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran had active service from February 1961 to February 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1995 rating decision of the Nashville, Tennessee, Regional Office (RO) which granted "potential compensation" under the provisions of 38 U.S.C.A. § 1151 (West 1991) for right (major) ring (fourth) finger ankylosis and assigned a noncompensable evaluation for that disability. The veteran has been represented throughout this appeal by the American Legion. The Board observes that the veteran has appealed from the initial evaluation assigned for his right ring finger disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation. However, the Court did not provided a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction, the Board has framed the issue as entitlement to an increased evaluation. The veteran is not prejudiced by such action. The Board has not dismissed any issue and the law and regulations governing the evaluation of disabilities is the same regardless of how the issue is styled. In reaching the determination below, the Board has considered whether staged ratings should be assigned and conclude that the disability addressed has not significantly changed and a uniform rating is appropriate. Preliminary review of the record does not reveal that the RO expressly considered referral of the veteran's claim for an increased evaluation for his right ring finger disability to the Department of Veterans Affairs (VA) Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). That 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 Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular 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 extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) 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). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's right (major) ring (fourth) finger disability has been shown to be manifested by no more than extremely unfavorable ankylosis secondary to surgical fusion of the proximal interphalangeal joint with internal fixation and no involvement of the digit proximal to the metacarpal phalangeal articulation. CONCLUSION OF LAW The criteria for a 10 percent disability evaluation for right (major) ring (fourth) finger ankylosis have been met. 38 U.S.C.A. §§ 1151, 1155, 5107 (West 1991); 38 C.F.R. §§ 3.358, 4.7, 4.71a, Diagnostic Code 5155 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is plausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. I. Historical Review A December 1991 VA hospital summary indicates that the veteran was diagnosed with an untreated right fourth proximal interphalangeal joint dorsal fracture subluxation. He subsequently underwent a right ring (fourth) finger volar plate arthroplasty. A February 1992 VA treatment record notes that the veteran's right fourth finger volar plate arthroplasty had "failed." In November 1995, the RO established "potential compensation" for right (major) ring (fourth) finger ankylosis under the provisions of 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1995) and assigned a noncompensable evaluation for that disability. II. Increased Evaluation Compensation granted under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999); 38 C.F.R. § 3.358 (1999) shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service-connected. Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Favorable or unfavorable ankylosis of the fourth (ring) finger of either hand warrants assignment of a noncompensable evaluation. Ankylosis is considered to be favorable when the tip of the finger may be flexed to within 2 inches (5.1 centimeters) of the median transverse fold of the palm. It is unfavorable when it precludes such motion. Extremely unfavorable ankylosis will be rated as amputation. Ankylosis is considered to be extremely unfavorable when either all the joints of the finger are in extension or in extreme flexion or there is rotation and angulation of the bones. A 10 percent evaluation is warranted for amputation of the ring finger of either hand if the point of amputation is at the proximal interphalangeal joint or proximal thereto and without metacarpal resection. A 20 percent evaluation requires that the amputation involve metacarpal resection with more than one-half of the bone lost. 38 C.F.R.§ 4.71a, Diagnostic Codes 5155, 5227 (1999). Where there is a question as to which of two disability 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (1999). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). At a January 1996 VA examination for compensation purposes, the veteran complained of right fourth finger fixation and loss of motion. On examination, the veteran exhibited an ankylosed right fourth finger with "slight flexion deformity" and an inability to flex or extend distal to the metacarpal phalangeal articulation. Contemporaneous X-ray studies of the right fourth finger revealed proximal interphalangeal joint arthrodesis with internal fixation. The veteran was diagnosed with an ankylosed right fourth finger secondary to a traumatic fracture of the digit. In his July 1996 substantive appeal, the veteran advanced that a 20 percent evaluation was warranted for his right fourth finger disability. At a September 1996 VA examination for compensation purposes, the veteran complained that he could not close his hand. On examination, the veteran was "unable to bend his fourth finger on the right hand at all." Contemporaneous X-ray studies of the right fourth finger revealed fusion at the proximal interphalangeal joint with a metallic rod with distal half of the proximal phalanx. At a February 1999 VA examination for compensation purposes, the veteran was found to be unable to fully use the right hand due to his inability to close and fully oppose the hand. The Board has reviewed the probative evidence of record including the veteran's statements on appeal. The reports of the VA examinations for compensation purposes indicate that the veteran's right (major) fourth (ring) finger was ankylosed due to surgical fusion residuals including an internal fixation device involving the portion of the digit distal to the metacarpal phalangeal articulation. He was found to be unable to move his fourth finger at all. While the examination reports are not models of clarity, it appears that all of the right fourth finger joints were in flexion. Such findings merit assignment of at least a 10 percent evaluation under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5155 (1999). The clinical record does not indicate any involvement of the right fourth metacarpal. In the absence of such involvement, the Board concludes that the veteran's right (major) ring (fourth) finger disability most closely approximates the schedular criteria for a 10 percent evaluation. 38 C.F.R.§§ 4.7, 4.71a, Diagnostic Code 5155 (1999). ORDER A 10 percent evaluation for right (major) ring finger ankylosis is granted subject to the laws and regulations governing the award of monetary awards. J. T. HUTCHESON Acting Member, Board of Veterans' Appeals