Shipwash v. Brown

8 Vet. App. 218, 1995 U.S. Vet. App. LEXIS 377, 1995 WL 273560
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 10, 1995
DocketNo. 94-0021
StatusPublished
Cited by106 cases

This text of 8 Vet. App. 218 (Shipwash v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shipwash v. Brown, 8 Vet. App. 218, 1995 U.S. Vet. App. LEXIS 377, 1995 WL 273560 (Cal. 1995).

Opinion

STEINBERG, Judge:

The appellant, veteran Michael S. Ship-wash, appeals a September 20, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) denying an increased rating for residuals of an injury to the right little finger. Record (R.) at 5. Both parties filed briefs. For the reasons that follow, the Court will affirm in part and vacate in part the decision of the Board and remand a matter for read-judication consistent with this opinion.

I. Background

The veteran served on active duty in the U.S. Army from November 1988 to October 1991. R. at 15. His July 1988 entrance medical examination report indicated “normal” for “upper extremities”. R. at 19. A January 1990 Service Medical Record (SMR) indicated that the veteran was to have two weeks of sick leave following recent surgery on the right hand. R. at 61. April 1990 SMRs indicate that the veteran, while stationed in Germany, had fallen from a bicycle and sprained his right wrist. R. at 66, 69. An x-ray of the wrist was negative for any obvious fracture. R. at 65-66. In June 1990, he fell and fractured his left wrist, and received outpatient treatment and therapy until October 1990. R. at 71-73, 91, 97.

In November 1990, while still stationed in Germany, the veteran fractured his right little finger when his hand was caught between a truck and a loading ramp. 108-09. He had surgery to reduce the fracture on November 24,1990. R. at 108. A January 1991 SMR reported that he could not “bend or straighten his right little finger [and] continues to have physical therapy without any relief’. R. at 117. A February 1, 1991, orthopedic consultation report indicated “virtually no motion at PIP joint” (“PIP joint” is an abbreviation of “proximal interphalangeal [221]*221joint”, which refers to the first finger joint past the knuckle, Doeland’s Illusteated Medical Dictionary 846, 1270, 1375 (27th ed. 1988) [hereinafter Dorland’s] ), and noted that a “pin appears to be blocking joint flexion”. R. at 119. A surgical procedure was performed on February 6, 1991, in an attempt to improve movement in the veteran’s finger, but the plate and pins in the finger could not be removed because of incomplete healing of the fracture. R. at 121, 128. The plate was removed from the finger in an operation in June 1991. R. at 140. A September 1991 SMR indicated that he had flexion contracture of the right little finger because of delayed healing of the fracture and protrusion into the finger joint of a pin that had been holding the plate in place. R. at 154-55.

In October 1991, the veteran filed with a Department of Veterans Affairs (VA) regional office (RO) an application for compensation or pension for, inter alia, “laceration of right small finger”. R. at 158-61. A December 1991 VARO decision awarded service connection for laceration and fracture of the right little finger, rated 0% disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5227 (1994). R. at 163. The RO decision also granted service connection for a back condition, rated 0% disabling, and stated that it had considered 38 C.F.R. § 3.324 (1994), but did not feel that a combined 10% rating was indicated. The veteran filed a February 1992 Notice of Disagreement and June 1992 VA Form 1-9, Appeal to the BVA. R. at 169, 184.

On August 24, 1992, the veteran testified under oath at a hearing that his finger was fixed in a position of 90-degree flexion and that his “doctors told [him] it would never straighten again”. R. at 190. He stated that he would be at a disadvantage in his future career because shaking hands was awkward and he could no longer type 70 words per minute; that he was affected in his ability to participate in sports; that the finger was constantly sore and that when “it comes in contact with something the pain is intense”; that the deformity was embarrassing and “bothers me psychologically”; and that he could not make a fist. R. at 191-92. He asserted that movement in the middle joint of the finger was impossible, and stated: “I don’t even consider it a finger because I can’t use it.” R. at 192. The hearing officer, in an August 24, 1992, decision, affirmed the 0% rating because “there is no involvement of the metacarpophalangeal joint and motion is possible to within two inches of the transverse fold of the palm” and ankylosis was thus “favorable”. R. at 196. (The “metacar-pophalangeal joint” is the knuckle, Dor-land’s at 1014, 1270. “Ankylosis” is immobility and consolidation of a joint due to disease, injury, or surgical procedure, Dor-land’s at 91.)

On March 22, 1993, the Board remanded the veteran’s claim to the RO for a VA examination to determine the nature and extent of his right-little-finger disability, including scars and the cause of any pain. R. at 214-15. The veteran received an April 1993 examination which diagnosed the scars as “not significantly tender upon palpation.” R. at 221. An orthopedic examination that same month recorded that he had “fairly good strength in grasping objects and picking up heavy things, but ... markedly decreased dexterity secondary to the position of his finger”; that when he flexed his fingers down into his palm the tip of the right little finger was approximately one inch away from the median transverse volar of the palm; that the PIP joint was immobile and the DIP joint had “only 10 [degrees of] passive r[ange] o[f] m[otion]”; and that the veteran had reported to the physician that he had lost one job because of his finger injury. R. at 222-23. (The “volar” is the flexor surface of the forearm, wrist, or hand, Dorland’s at 1847. “DIP joint” is an abbreviation for “distal interphalangeal joint”, which is the finger joint farthest from the knuckle, Dor-land’s at 499, 846, 1270.) The orthopedic diagnosis was “[r]ight 5th finger PIP joint contracture secondary to the patient’s open proximal phalanx fracture which was suffered in 1990.” R. at 223. A VA x-ray examination report stated: “Flexed position of the fifth finger, associated with some lateral deviation at the level of the meta-carpophalangeal joint.” R. at 224 (emphasis added). Neither examination report dealt with the cause of the veteran’s asserted pain.

[222]*222In June 1993, the RO denied an increased rating for residuals of a right-little-finger fracture, stating that schedular requirements for a compensable (greater than 0%) rating were not met and that the RO had considered and rejected the application of an ex-traschedular rating under 38 C.F.R. § 3.321(b)(1) (1994). R. at 227-29. The veteran responded with a letter in which he stated that he could not throw a football, use a typewriter efficiently, run his hand through his hair, or put his hand in his pocket, and that “I have even lost a job because of this disability.” R. at 238.

The Board, in the September 20, 1993, decision here on appeal, denied an increased rating for residuals of an injury to the veteran’s right little finger. The Board stated that the ankylosis of that finger was properly rated as 0% because it was “favorable” under DC 5227, and that a 10% rating for superficial scars was not warranted under DCs 7803 and 7804. R. at 5, 7-8.

II. Analysis

A. Generally Applicable Law

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Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 218, 1995 U.S. Vet. App. LEXIS 377, 1995 WL 273560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipwash-v-brown-cavc-1995.