William R. Sowers v. Robert A. McDonald

27 Vet. App. 472, 2016 U.S. Vet. App. LEXIS 187, 2016 WL 563055
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 12, 2016
Docket14-0217
StatusPublished
Cited by24 cases

This text of 27 Vet. App. 472 (William R. Sowers v. Robert A. McDonald) 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
William R. Sowers v. Robert A. McDonald, 27 Vet. App. 472, 2016 U.S. Vet. App. LEXIS 187, 2016 WL 563055 (Cal. 2016).

Opinion

SCHOELEN, Judge:

The appellant, William R. Sowers, through counsel, appeals a December 13, 2013, Board of Veterans’ Appeals (Board) decision in which the Board denied an initial compensable rating for postoperative residuals of a right ring finger fracture. 1 Record of Proceedings (R.) at 3-23. *475 This appeal is timely, and the Court has jurisdiction to review the Board’s March 2014 decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court without oral argument to decide whether the Board erred in finding that Mr. Sowers was not entitled to a compensable rating under 38 C.F.R. § 4.59 (2015) because the relevant diagnostic code (DC) he is rated under does not have a compensable rating. For the reasons discussed below, the Court finds that the Board was correct in its determination: Section 4.59 is limited by the DC applicable to a claimant’s disability, and where that DC does not provide a compensable rating, § 4.59 2 does not apply. Accordingly, the Court will affirm the Board’s decision on this matter. However, the Court will also vacate the portion of the Board’s decision addressing extraschedular consideration and remand that matter for further proceedings consistent with this decision.

I. BACKGROUND

Mr. Sowers served on active duty in the U.S. Air Force from July 1976 to December 1992 and from December 2002 to March 2005. R. at 424-28, 849, 866. Service treatment records reflect that while playing football in October 1976, Mr. Sowers fell and fractured his right ring finger. R. at 896-906. In May 2006, finding that Mr. Sowers fractured the distal interpha-langeal joint and sustained mallet finger deformity during service, the regional office (RO) granted service connection for a right ring finger disability. R. at 783-95. The RO assigned a noncompensable evaluation under DC 5010-5230, 3 effective April 1, 2005. R. at 794. The RO also granted service connection for a right index finger disability. R. at 786.

The next month, Mr. Sowers filed a Notice of Disagreement (NOD) challenging the rating assigned for his right ring finger disability. R. at 775-78. Specifically, *476 Mr. Sowers asserted that a higher rating was warranted because he had “severe limited range of motion along with pain.” R. at 777. After the RO issued a May 2007 Statement of the Case (SOC), Mr. Sowers perfected his appeal to the Board. R. at 74648, 749-74. In a March 2008 VA medical examination, the examiner noted that with regard to both his index and ring fingers, Mr. Sowers “[did] not report any specific symptomatology, that is, no pain, no stiffness, swelling, locking, [or] impairment in the activities of daily living.” R. at 718-19. The examiner reported that Mr. Sowers was “able to carry out his usual occupation” of mail carrier for the U.S. Postal Service. Id. On examination, he was able to approximate the tip of his right ring finger to the palmar crease without difficulty. R. at 720.

Following this examination, the RO issued a Supplemental SOC (SSOC) denying a compensable rating for the right ring finger. R. at 346-47. At a January 2012 Board hearing, Mr. Sowers testified that he experienced problems with fine motor control. R. at 271. He asserted that both his right index and ring fingers had deteriorated since his last examination. R. at 272-74. He testified that he is required to sort mail as part of his job and that his finger disabilities cause him to “miss throw” and that he has to review his work to make sure he did not make a mistake. R. at 275.'

A treatment note from later that month reflects that Mr. Sowers experienced limited active range of motion of his index and ring fingers. R. at 265. An April 2012 Board decision remanded the matter for a new VA examination evaluating his finger disabilities. R. at 259-60. In the subsequent June 2013 VA examination, the examiner noted that the right ring finger “has occasional pain and stiffness with decreased [range of motion]. [He] [h]as a bump on the volar side of the proximal phalanx and it locks up occasionally.” R. at 133. Mr. Sowers was able to perform repetitive use testing without any additional limitation of motion. R. at 135. The examiner also indicated that Mr. Sowers did not have ankylosis of the thumb or fingers or any flexion or extension limitations in his right ring finger. R. at 137, 139.

II. THE DECEMBER 2013 BOARD DECISION

A. Schedular Rating for Right Ring Finger

In the December 2013 decision on appeal, the Board noted that the right ring finger disability had been rated under hyphenated DC 5010-5230. R. at 13. However, the Board determined that DC 5010 was not appropriate for evaluating the right ring finger disability because arthritis had not been substantiated by x-ray findings, as required by DC 5010. R. at 14. In fact, the Board concluded that no DC pertaining to arthritis was applicable to Mr. Sowers’s claim. R. at 15. The Board further found that the evidence did not establish ankylosis of the right ring finger or that Mr. Sowers’s “disability picture approximates amputation of the right ring finger ... even with consideration of painful motion and other factors'.” Id. The Board concluded that the right ring finger was most appropriately rated under DC 5230 4 with a noncompensable rating. R. at 14.

Having found some evidence of painful motion, the Board stated that the “Rating *477 Schedule does not provide for even a 10[%] rating for any amount of limitation of motion of the ring finger. Thus, under § 4.59, there is no “minimum compensable rating” for limitation of motion of a ring finger joint.” R. at 15. Consequently, the Board concluded that despite evidence of painful motion, a compensable rating was not warranted. Id.

B. Extraschedular Consideration

Considering each finger disability separately, the Board found that extraschedu-lar consideration was not warranted. R. at 17-18. Regarding the right index finger, the Board noted that this disability caused “pain, painful motion, limitation of motion, weakness, numbness, and reduced grip” — all symptoms, according to the Board, that were contemplated by the rating criteria. R. at 18. As to the right ring finger, the Board found that painful motion was contemplated by the rating schedule. Id. Accordingly, the Board denied extras-chedular consideration. This appeal followed.

III. THE PARTIES’ ARGUMENTS

Mr. Sowers argues that the Board erred when it found that he was not entitled to a compensable rating for his painful motion under § 4.59. Appellant’s Br. at 6-7. He asserts that § 4.59 is designed to add flexibility to the rating schedule. Appellant’s Reply Br. at 2-3.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Garciamedina v. McDonough
Federal Circuit, 2023
Frazier v. McDonough
66 F.4th 1353 (Federal Circuit, 2023)
201214-123820
Board of Veterans' Appeals, 2021
191209-48488
Board of Veterans' Appeals, 2020
181220-1416
Board of Veterans' Appeals, 2019
190219-3845
Board of Veterans' Appeals, 2019
12-30 114
Board of Veterans' Appeals, 2018
11-11 968
Board of Veterans' Appeals, 2017
11-18 109
Board of Veterans' Appeals, 2017
09-44 974
Board of Veterans' Appeals, 2017
13-07 440
Board of Veterans' Appeals, 2017
11-30 188
Board of Veterans' Appeals, 2017
Cantrell v. Shulkin
28 Vet. App. 382 (Veterans Claims, 2017)
Doucette v. Shulkin
28 Vet. App. 366 (Veterans Claims, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
27 Vet. App. 472, 2016 U.S. Vet. App. LEXIS 187, 2016 WL 563055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-r-sowers-v-robert-a-mcdonald-cavc-2016.